Public Access Requirements

Public Access Requirements

 

A. PEG Channel assignments

B. Capacity set-asides

C. Facilities/Equipment

D. Uplink/Origination sites

E. Technical assistance

F. Channel positions

G. Audio channels

H. Independent management

I. Additional channels

J. Promotion

In passing the Cable Communications Policy Act of 1984, Congress described public access channels as "the equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." Across the country, public-, education-, and government-access (PEG) channels have succeeded admirably in that regard, turning out thousands of hours of new programs each week, according to Public Access of Indianapolis (where, ironically, residents lost their public access channel in that city's cable franchise negotiations in 1996).

The basic PEG provision, James Horwood of Spiegel & McDiarmid explains in "Cable Franchise Renewal and Local Right of Way Management," is set forth in Section 611 of the Cable Act, 47 U.S.C. § 531, which permits cities to establish requirements for the designation of channel capacity for PEG use. A city may require as part of a franchise, or as part of a cable operator's proposal for renewal, that channel capacity be designated for PEG use, and may require rules and procedures for the use of such channel capacity. A city may enforce "any requirement in any franchise regarding the providing or use" of PEG channel capacity, including the authority to enforce franchise provisions for "services, facilities or equipment."

In its invaluable "PEG Access Basics" (PDF) document, the Buske Group describes the three divisions of PEG programming:

Public access consists of video programming and other electronic information produced, directed, and engineered by community volunteers. (For convenience, all types of information carried on PEG channels will be referred to as “programming,” although PEG channels are used to carry video information, data, video text, and voice communications.) In the case of public access, the programming is developed or acquired by nonprofit community groups, neighborhood organizations, social service agencies, and individual citizens. It focuses on many aspects of community life, ranging from the services and activities of community organizations to the opinions and beliefs of individuals in the community.

Educational access is developed or acquired by school or college employees, students, and school volunteers. It typically focuses on distance learning, school activities, and information that the school/college wants to get out to the community or share among schools.

Government access is created or acquired by local government employees, elected officials, and volunteers. It typically focuses on information about services provided by local, State, and regional governments, issues faced by local governments, and such as providing training to City employees or exchanging information between City agencies and other institutions.

Model PEG operations include the Chicago Access Network; Iowa's Public Access TV 18; New York's Manhattan Neighborhood Network; the Grand Rapids Community Media Center; the Community Media Center of Santa Rosa; SFGTV, the San Francisco government-access channel; Butte College TV; and San Jose's Civic Center TV.

A. PEG Channel Assignments: At their simplest and most straightforward, cable franchises specify the number of channels that will be devoted to PEG access. St. Paul, for example, requires seven PEG channels:

St. Paul's access channel provisions:

300.(h). Access channels.

300.(h).(1). The company shall make available for access programming purposes seven (7) channels on the subscriber network for PEG access use, as follows: four (4) channels for public access; one (1) channel for government access; one (1) for educational access; and one (1) channel for regional PEG access. One (1) additional channel shall be provided upon the city's request whenever (A) all public; or (B) all educational; or (C) the government channels; or (D) the regional channel is in use during eighty (80) percent of the weekdays, Monday to Friday, for eighty (80) percent of the time during any consecutive three-hour period for six (6) weeks running. The company shall have six (6) months from the date of the request in which to provide the new channel, but the company need not provide the channel until after the date scheduled for completion of the upgrade required by Article III (or, if earlier, the date the upgrade is actually completed).

A.2. Portland's PEG requirement is even more ambitious, specifying eight access channels before the impending system upgrade, along with more localized government- and education-channel service areas ("narrowcasting") following the upgrade.

Portland's access channel assignments:

7.3 Access Channel Assignments.

(A) The Jurisdictions may designate up to six (6) points of origination for Access Channels located within the Cable Services Area, and Grantee shall provide the technical capability to transmit Signals for Access Channels from the designated origination points.

(B) Until the Cable System Upgrade is completed, Grantee shall provide Channel assignments for PEG Access and cablecast such Access Channels to the Franchise Area, as follows:

(1) Channel 11 - public access

(2) Channel 21 - public access

(3) Channel 22 - public access

(4) Channel 30 - government access

(5) Channel 31 - educational access

(6) Channel 33 - public access

(7) Channel 53 - educational access

(8) Channel 58 - public access

(C) Upon completion of Cable System Upgrade, Grantee shall provide Channel assignments for PEG Access and Narrowcast such Access Channels to the service areas as follows:

(1) Channel 11 - public access (Franchise Area)

(2) Channel 21 - public access (Franchise Area)

(3) Channel 22 - public access (Franchise Area)

(4) Channel 30 - government access (City of Gresham boundary discretely from Multnomah County, Fairview, Troutdale and Wood Village combined)

(5) Channel 31 - educational access (Portland Community College service area and Mt. Hood Community College service area discretely)

(6) Channel 33 - public access (Franchise Area)

(7) Channel 53 - educational access (Each public school's service area within the Franchise Area discretely)

(8) Channel 58 - public access (Franchise Area)

(D) PEG Access Channel assignments, as provided under this Section, may be adjusted or altered only with the specific written approval, in advance, by the Jurisdictions. Access Channel types, (i.e. Public, Educational, Government), as provided under this Section, may be adjusted by Designated Access Providers upon approval by the Jurisdictions. If technology changes render Channel assignments obsolete, Grantee shall negotiate with the Jurisdictions to determine equitable placement of Access Channels.

B. Capacity set-asides: Instead of discrete channels for PEG use, a number of cities now require a set-aside (up to 10 percent) of network capacity. Montgomery County, Md., for example, provides for a flexible use of PEG channel assignments: "Any reference to an upstream or downstream analog channel for PEG use refers to a 6 MHz Channel. Any entity that manages an Access Channel may use that capacity to provide one or more channels of service." (Section 7 [5])

The definition of PEG spectrum used by Monterey, Calif., similarly, covers both analog and digital systems, with the latter expected to transmit 24 PEG access channels, along with "… an additional twelve (12) MHz of spectrum available for access purposes to implement technological advances, including but not limited to HDTV [high-definition television]…." (7.11.A.1)

Portland's franchise calls for a 10 percent digital set-aside:

Sec 7.2

(C) Digital Capacity. Grantee shall reserve, for PEG Access use, either ten percent (10%) of the total Activated Residential Network Downstream Digital Capacity or thirty-six (36) Digital Channels, whichever is less. These Channels shall have the Capacity to carry entertainment quality and full motion equivalent Channels. Grantee shall technically configure the Digital Access Channel Capacity as mutually agreed upon by the Grantee and the Jurisdictions. Grantee shall Activate Digital Capacity under this Subsection upon request by the Jurisdictions for PEG Access use in order to meet a community need identified by a Designated Access Provider.

(D): Digital Capacity. At the same time as digital transition under Section 7.2(C) begins, Grantee shall reserve, for PEG Access use, either 10% of the total Activated Cable System Downstream Channel Capacity on the Residential Network or 36 Channels (including Channels provided under Sections 7.2(A) and (B) and Section 7.4), whichever is less. These Channels shall have the capacity to carry entertainment quality and motion equivalent Channels , but may be reconfigured, at the City's direction, to carry Channels which require less capacity. Grantee shall Activate digital Capacity under this Subsection upon request by the City for PEG Access use in order to meet a community need identified by a Designated Access Provider.

B.2. Montgomery County's franchise includes 13 analog video PEG channels and "up to 10% of the System's total downstream digital capacity for PEG use (the 'Digital Set-aside')."

Montgomery County's PEG channel requirement:

7. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND

GOVERNMENTAL USE.

(a) Access Channels:

(1) The Franchisee shall provide at least thirteen (13) analog video Channels for non-commercial public, educational and governmental use, which Channels shall be in addition to any capacity provided on the Institutional Network pursuant to Section 7(h). Seven of the thirteen (13) PEG channels shall be allocated as follows:

(A) One full-time analog video channel for County Government use;

(B) One full-time analog video channel for Educational Access use by the Montgomery County Public Schools;

(C) One full-time analog video channel for Educational Access for use by Montgomery College;

(D) One full-time analog video channel for Public Access use by Montgomery Community Television or other County designee;

(E) One full-time video analog channel for Governmental use by the City of Rockville;

(F) One full-time video analog channel for Governmental use by the City of Takoma Park;

(G) One full-time video analog channel for Governmental use by the Montgomery County Chapter of the Maryland Municipal League.

(2) The remaining PEG channels shall be allocated by the County in its sole discretion.

(3) Additionally, the Franchisee shall make available up to 10% of the System's total downstream digital capacity for PEG use (the "Digital Set-aside"), subject to a limit of 25 Channel Equivalents. Capacity made available under this section shall be used for PEG purposes only. The County and Franchisee shall work together to implement technical solutions that make the most efficient use of the Digital Set-aside. The requirements of Section 7(d) (Management of Channels), 7(e) (Editorial Control), and 7(f) (Indemnification) shall apply to programming provided over the Digital Set-Aside.

C. Facilities/Equipment: In addition to system capacity, franchise agreements also normally specify the provision of facilities and equipment for PEG use.

St. Paul's PEG facilities requirement:

304.(c). Public access facilities.

304.(c).(1). Throughout the franchise term, the company shall provide, free of rent and other charges, except those specified below, the approximately six thousand six hundred ninety (6,690) square feet of space at the Union Depot… (hereinafter "designated space" or "space") for use by the designated entity responsible for public access. In addition, the company shall provide the approximately two thousand five hundred (2,500) square feet of space at the Union Depot… (hereinafter the "expansion space"). The designated entity shall pay the company fifty (50) percent of the amount (if any) actually paid by the company annually for rent and property taxes for the expansion space, but no more than twelve thousand five hundred dollars ($12,500.00) per annum, plus the operating charges specified below. The designated space shall include the studio, edit facilities and other equipment and resources, available for PEG use as of December 1, 1997. The company shall maintain the availability of existing utilities and HVAC [heating, venting, and air conditioning] in designated space and expansion space as part of the company's obligation to ensure that this space remains commercially habitable consistent with its existing use and will allow the designated entity to expand HVAC and utilities, and allow the designated entity temporary access to its space for such purposes. In addition, the company shall ensure that restroom facilities are available to the designated space, in addition to the restrooms available to the expansion space.

304.(d). In the event the designated entity is denied use of the designated space or expansion space by the company or any third party, the use of the designated space or expansion space is prohibited by local law or code, or the designated space or expansion space is rendered unfit for use as a video production and playback facility, the company shall provide to the designated entity on comparable terms and conditions six thousand six hundred ninety (6,690) square feet of space comparable to the designated space and two thousand five hundred (2,500) square feet of contiguous space comparable to the expansion space, finished to comparable quality and with comparable utilities and services as existed in the designated space and expansion space at the time of relocation at an alternative location (hereinafter "substitute space" or "space"), mutually selected by the company and city, or, if the parties cannot agree, by binding arbitration pursuant to section 430.035 of the city's Legislative Code. The company shall pay reasonable relocation expenses, including, but not limited to, expenses for reinstalling electrical and technical equipment and for third-party reactivation, reconnection of internal equipment, and balancing. The alternative space must be provided so that there is no interruption in PEG operations.

D. Uplink/origination sites: Often included in the PEG facilities requirement is a stipulation for live origination points around the city, including locations on the institutional network (see section V) as well as other PEG systems in the region (if those systems are interconnected [see section II. B]). Portland's franchise, for example, calls for a full range of "uplink sites":

Portland's requirement for live origination points (uplink sites):

7.6(C) Live Origination Points. Both before and after the Cable System Upgrade required under this Franchise, the Grantee shall provide, at a minimum, the transmission capability for Designated Access Providers to originate discrete, live Programming from:

(1) Designated Access Providers;

(2) any location on the Institutional Network (including any High- or Low-Capacity I-Net locations to the extent technically feasible given the priority functioning of the Residential Network); and,

(3) any available Programming origination points on any cable system with which the PEG Access Channels are Interconnected, provided other cable operators permit.

D.2. St. Paul's franchise features a similar "upstream" requirement, while Montgomery County specifies the local institution from which "return feeds" will be guaranteed:

St. Paul's upstream requirement:

300.(j). The company, at its cost, shall maintain and operate the system so that the city or the designated entities or users of PEG use capacity (through the designated entity) may transmit signals upstream from distant locations on the institutional network whether existing as of the effective date of the franchise, or added thereafter; and so that the city may transmit signals upstream from City Hall playback facilities to the headend, to the designated entities' respective master controls and to subscribers. The company shall also maintain and operate the system so that signals can be routed onto the appropriate PEG use channels and so that designated entities may, from their respective master control sites, receive signals from and transmit signals to the headend and out through the institutional network and the subscriber network on the appropriate channels. Designated entities must be able to control signals from distant locations and preview them before they are transmitted to subscribers or to the institutional network. The company shall at all times provide a dedicated connection to the master playback controls for the PEG access channels with sufficient capacity so that each designated entity can program the channels under its control. In addition, the company shall provide a connection with sufficient activated capacity so that the public access designated entities may program all the subscriber network PEG channels for which they have playback responsibility simultaneously, and so the public access master playback control can preview signals originated elsewhere and route them onto the appropriate channels. The company shall maintain and operate the system so that the city or its designated entities can take advantage of the capabilities of the system.

D.3. Montgomery County's return feed requirement:

7 (c) Return Feed From Facilities:

(1) The Franchisee shall provide dedicated, bi-directional fiber optic links between the headend and each of the following PEG facilities, at the addresses designated in Exhibit E:

(i) Montgomery Community Television, Inc.;

(ii) Montgomery College;

(iii) Montgomery County Public Schools administration building;

(iv) Montgomery County Executive Office Building;

(v) City of Rockville City Hall;

(vi) City of Takoma Park City Hall

(vii) Maryland Municipal League;

(viii) University of Maryland;

(ix) Chevy Chase Village; and

(x) Town of Chevy Chase.

These links shall be completed within twelve months of the effective date of the Franchise.

E. Technical assistance: Another item that can be incorporated in franchise requests is assistance from the cable provider to ensure the smooth operation of the PEG facilities.

Austin's technical assistance requirement:

4.7. Access Resources. The Grantee shall provide technical assistance necessary to transmit access programming on the Access Channels as directed by the City, as applicable, on an as-needed basis. In no event, however, shall this obligation include assistance with the production of programming.

F. Channel positions: Once they are assigned, PEG channels can both be guaranteed a place in the basic service tier and assured of a more-or-less permanent placement in the overall channel alignment.

St. Paul's franchise requires that PEG be included in the basic tier (or its equivalent):

300.(l).(4). The company will provide any PEG access channels on the basic tier throughout the life of the franchise, or if there is no basic tier, shall provide the PEG access channels to any person who subscribes to any level of cable video programming service at no additional charge, and otherwise in accordance with federal and state law. If channels are selected through a menu system, the PEG access channels shall be displayed in the same manner as other channels.

F.2. Montgomery County's franchise includes a provision concerning fixed positions of access channels:

7 (4) Access Channel assignments should not be changed unless there is good cause and the entity responsible for managing the Access Channel consents to the change. Such consent to a channel assignment change shall not be unreasonably withheld. Access channel assignments should be the same throughout the System. If the Franchisee decides to change the channel designations for Access Channels, it must provide six months notice to the County prior to doing so, and shall reimburse the County and/or PEG users for any costs incurred for purchasing or modifying any equipment or for making logo changes necessitated by the channel designation changes. Alternatively, the Franchisee may choose to supply such equipment itself, provided such equipment is satisfactory to the County or PEG users.

G. Audio channels: Although audio programming is often overlooked in franchise agreements, audio channels can provide a valuable local alternative to the lamentable state of commercial radio. Such programming (which will become increasingly viable in the digital cable environment, with its expanded system capacity) is acknowledged in Portland's franchise.

Portland's Audio Channel requirement:

(E) Stereo Audio Channel. Grantee shall designate and provide for PEG Access use of one Upstream and one Downstream FM or digital stereo audio Channel for PEG Access audio Programming or audio simulcast with PEG Access video Programming. PEG Access use of these channels shall have priority over all other uses, so long as Grantee is notified ninety (90) days in advance of each use.

H. Independent management: While a number of PEG operations around the country are managed by cable companies themselves, independent, municipal, and institutional management of PERG is vastly preferable. "The creation of a nonprofit corporation," notes the Buske Group, "is broadly recognized as an advantageous approach to developing and facilitating public access as well as educational and government access in a community." Among the advantages of this model, Buske explains, are the following:

• Demonstrated track record of achievement in many communities.

• Primary purpose of nonprofit is to assure the wide use of access resources.

• Operations and programming efforts are more responsive to the community's needs.

• Provides a community-based approach to decision making.

• Board of Directors of nonprofit is broad-based and representative of the community.

• More accountability to the community.

• Provides a degree of insulation between local government and cable company in area of program content and liability for program content. This insulation has proven to be extremely valuable to both the local government and cable company in many communities.

• Allows government to have accountability function regarding public access rather than control over content of public access programs.

• Because of the nonprofit status and the combined PEG approach there are more potential sources of funding for special activities and projects.

Nonprofit access organizations, Buske adds, can provide a variety of management services, including the following:

1. Operate Public, Educational, and Government Access Channel(s): Operate the access cable channels for PEG access programming with the primary purpose being to administer, coordinate, and assist those requesting access on a non-discriminatory basis.

2. Operate a Community Access Center: Provide a video production facility and equipment that shall be available for public use at such hours and times as are determined by the access corporation. Access to equipment and facilities shall be open to all those who receive training or who receive a certification from the access corporation identifying the user(s) as having satisfied training requirements.

3. Develop Operating Rules and Procedures: Develop rules and procedures for use and operation of the access equipment, facilities and channel(s) and file such rules and procedures with the City.

4. Training: Teach video production techniques to City residents and, when requested, City and school employees. Provide technical advice for the productions.

5. Playback/Cablecast: Provide for the playback/cablecasting of programs on the access channel(s).

6. Maintenance of Equipment: Provide regular maintenance and repair of all video equipment.

7. Promotion/Outreach: Actively promote the use and benefits of the access channel(s) and facilities to subscribers, the public, access users, community groups, local government, educational institutions and the cable operator.

8. Volunteer Management: Develop and manage a pool of volunteers who create community-based programs and assist others wishing assistance.

Palo Alto's franchise includes a stipulation concerning the independent operation of PEG channels:

7.11.3 Requirements Regarding Rules and Procedures for Use of PEG Access Channels.

(1) The City may designate a Community Access Organization to manage the use of PEG access channels provided in the Service Area, which are provided pursuant to the Franchise.

(2) The Community Access Organization shall establish and enforce rules for use of the PEG Access channels to ensure non-discriminatory access to the extent required by applicable Law to one or more channels to similarly situated Users, and promote use and viewership of the channels, consistent with the obligation to provide non-discriminatory access to similarly situated Users. The City shall be responsible for establishing and enforcing rules for use of the PEG Access channels during any period such Community Access Organization does not exist.

(3) TCI [now Comcast] may not exercise any editorial control over the content of programming on the designated PEG Access channels (except for such programming TCI may produce and cablecast on the same basis as other PEG Access channel Users).

(4) The PEG Access channels shall be available at no charge to Users, the Community Access Organization, and/or the City.

(5) PEG Access channels may not be used for the cablecast of commercial advertising or a program whose purpose is commercial and for-profit without the express written permission of TCI.

I. Additional channels: Even an expansive franchise, such as Portland's (which requires eight PEG channels), leaves room for growth by incorporating triggers for the deployment of additional access channels.

Portland's requirement for additional PEG channels:

7.4 Expansion of Access Channels.

(A) In areas where the Cable System Upgrade under in Section 11 has been completed and for those Subscribers who have been cut-over to the Upgraded Cable System, and prior to completion of the digital transition under Section 7.2(D), the Grantee shall reserve additional Downstream Standard Video Channels, so that there are a total of nine (9) Downstream Channels, for PEG Access use. The Jurisdictions may require Activation of these reserved Access Channels when a Designated Access Provider demonstrates to the Jurisdictions, and the Jurisdictions provide such information to the Grantee, that additional reserved Channels are needed. In determining such need, the Jurisdictions shall use the following criteria, as applicable to the type of Access Channel to be Activated:

(1) Public Access Channels: During eight (8) consecutive weeks, the Public Access Channel is in use for Original programming at least eighty percent (80%) of the time, seven (7) days per week, for any consecutive five (5)-hour block during the hours noon to midnight, and programming is Locally Produced or Locally Sponsored; or,

(2) Educational Access Channels: During eight (8) consecutive weeks, the Educational Access Channel is in use for Original programming at least eighty percent (80%) of the time, five (5) days per week, Monday through Friday, for any consecutive five (5)-hour block during the hours 9:00 am to 9:00 pm, and programming is Locally Produced or Locally Sponsored; or,

(3) Government Access Channels: During eight (8) consecutive weeks, the Government Access Channel is in use for local, Original programming at least eighty percent (80%) of the time, five (5) days per week, Monday through Friday, for any consecutive five (5)-hour block during the hours 9:00 am to 9:00 pm, and programming is Locally Produced or Locally Sponsored.

J. Promotion: Many PEG operations are well-kept secrets, unfortunately, overshadowed by network TV, ESPN, HBO, and similar mainstream fare. Thus a number of forward-looking franchise agreements include requirements for the promotion of PEG programming, covering such items as public service announcements, electronic program guide listings, and fliers inserted in subscribers' bills.

St. Paul's requirement for PEG promotion:

304.(h). The company shall provide the following promotional support for access:

304.(h).(1). Two (2) cross-channel public service announcement spots daily to promote community programs and the availability of community programming facilities and training;

304.(h).(2). All PEG access channels shall be listed on the electronic program guide (EPG) and in printed materials describing or listing channels on the system;

304.(h).(3). Insertion at no charge in at least two (2) bill stuffers annually for promoting the designated entity's service or generally promoting community programming, which bill stuffers shall be produced by the designated entity and shall conform to the company's standards and policies for size and weight. Any bill stuffer denigrating the company, its service or its programming is not permitted.

304.(h).(4). Distribution of the designated entity's newsletter to the company's employees.

J.2. Palo Alto's requirement for PEG promotion:

7.11.7 Promotion. In order to help develop and maintain (a) awareness of the PEG Access resources and services, and (b) viewership of the PEG Access channels by Subscribers, TCI [now Comcast] shall, during the term of this Agreement, provide the following promotional services to the Community Access Organization, free of any charges:

(1) Program schedule information for each PEG Access channel shall be listed in all print and electronic program guides provided by TCI to Subscribers, in the same manner as the program schedule information for other cable channels is listed. TCI shall provide the Community Access Organization access to third party providers to include PEG Access channel listings in their print and electronic program guides provided by TCI to Subscribers. The Community Access Organization shall be responsible for the timely provision and updating of these listings. Any fees associated with special placement or handling beyond the standard manner of presenting program schedule listings shall be the responsibility of the Community Access Organization.

(2) CAO Ad Avails [listing of spots available].

(A) During the first eighteen months after the effective date of this Agreement, TCI shall provide to the CAO, free of charge, five thirty-second ad avails per week, one of which will be in prime time and four of which will be in non-prime time.

(B) After the first eighteen months after the effective date of this Agreement, the CAO may purchase from the Cable System, at its lowest unit rate, up to five thirty-second ad avails per week, one of which will be in prime time (Pacific Time zone) and four of which will be in non-prime time. Nothing in Section 7.11.7(2) shall be construed to limit the CAO’s ability to purchase additional ad avail time from the Cable System at market rates.

(3) On an annual basis, TCI shall allow the Community Access Organization to submit to it written or printed material, created at the Community Access Organization’s expense, to be mailed to all subscribers within the Service Area. All costs of duplicating and mailing the material shall be borne by the Community Access Organization. TCI shall provide access to its vendors so as to afford the Community Access Organization the most affordable printing, delivery and mailing price for the distribution of the CAO’s written or printed material to Subscribers.

J.3. Monterey's requirement for promotion of PEG channels:

7.11. H. Promotion. In order to help develop and maintain (a) awareness of the PEG access resources and services, and (b) viewership of the PEG access channels by Monterey cable subscribers, the Grantee shall, throughout the term of this Agreement, provide the following promotional services to the Access Corporation, free of any charges:

1. Thirty (30) 30-second PEG access promotional announcements per month on the cable programming services in which local advertising is inserted, to be scheduled no less than ninety (90) days prior to cablecasting. In addition:

a. Ten (10) of these monthly PEG access promotional announcements shall be inserted during “prime time” hours (i.e., between 7:00 p.m. and 11:00 p.m.), and

b. Five (5) of the monthly PEG access promotional announcements that are inserted during prime time hours shall be placed on channels selected by the Access Corporation.

2. Program schedule information for each PEG access channel shall be listed in all print and electronic program guides provided by the Grantee to subscribers, in the same manner as the program schedule information for other cable channels is listed. The Grantee shall provide the Access Corporation access to third party providers to include PEG access channel listings in their print and electronic program guides provided by Grantee to its subscribers. The Access Corporation shall be responsible for the timely updating of these listings. Any fees associated with special placement or handling beyond the standard manner of presenting program schedule listings shall be the responsibility of the Access Corporation.

3. On an annual basis, the Grantee shall allow the Access Corporation to submit a billstuffer, created at the Access Corporation’s expense, to be inserted into all customer statements within the Grantee’s cable system in Monterey County. All costs for insertion and postage shall be provided by the Grantee. The Grantee shall provide access to its vendors so as to afford the Access Corporation the most affordable printing price for the billstuffers. In consideration of regulatory notification requirements, the Grantee has final approval on the dates for insertion.

 

 

Technical Standards

Technical Standards

 

A. System design

B. Interconnections

C. Free cable service

D. Free modem connections

E. Emergency override

F. PEG quality-of-service guarantees

G. Technical assessment

H. Fiber requirements

I. Set-top attachments

With the rebuild of most cable systems in the country now complete, technical issues may seem less of a concern in franchise renewal negotiations. As Baller Herbst explain,

New or rebuilt cable systems are typically being designed to include a combination of fiber optic cable and coaxial cable in what is called a Hybrid Fiber Coaxial (HFC) system. Such systems generally include neighborhood nodes that serve 150 to 1,200 homes in order to increase the capability of providing unique programs and services to particular areas and expanding the overall capability of the system. Systems are also being designed to take advantage of digitization and compression that further expands system capacity.

In recent years, HFC systems have most often had design capacities of 550-750 MHz. Now, systems with capacities of 860 MHz to 1 GHz are emerging. This translates to 120 to 200 analog channels. A portion of the capacity of such systems is usually activated with programming in an analog format, with the remaining capacity reserved for digitization.

Thus Monterey's franchise includes a basic statement of "system functionality":

1. As rebuilt or upgraded and maintained, the Cable System must have reliability comparable to the reliability of those cable systems whose initial construction or rebuild was completed after 1998.

2. As designed, rebuilt, or upgraded and as maintained, the Cable System must be capable of being segmented to serve four hundred fifty (450) subscriber homes per node without additional fiber construction. In order to address subscriber demand for interactive services, the Grantee shall provide a minimum of 200 kbps per subscriber of interactive services in the downstream direction and 66 kbps per subscriber of interactive services in the upstream direction. (Section 7.1.B.)

The FCC has released technical standards for cable systems, and Andrew Afflerbach of Columbia Telecommunications Corporation has prepared an overview of modern cable technology, "Technical Background: Cable Architecture," which he presented at a USC Symposium on the Los Angeles Cable System in March 2004.

Even state-of-the-art cable systems need to be monitored, however, to ensure (among other things) that PEG channels enjoy the same technical advantages of their commercial counterparts; that the cable system is interconnected to adjacent systems (for the regional exchange of noncommercial programming, for example); that free cable and modem connections are offered to public and educational institutions; and that technical assessments take place periodically over the life of the franchise.

A. System design

St. Paul's franchise stipulates the technical standards for an upgraded system:

ARTICLE III. CABLE SYSTEM FEATURES

Section 300. Subscriber network.

300.(a). The company will upgrade the portion of the cable system primarily designed to provide cable services to residential subscribers as required by this Article III. The upgrade must be completed no later than thirty-six (36) months after the effective date of this franchise.

300.(a).(1). The upgraded system will use a fiber to the area node architecture (hybrid fiber-coax).

300.(a).(2). On average, the system will pass no more than one thousand two hundred (1,200) residential units per fiber node, and the plant from any node will not pass more than one thousand five hundred (1,500) residential units. On average, there will be no more than seven (7) active components in a cascade from the headend to the tap from which a subscriber is served, and no more than nine (9) active components in any cascade.

300.(a).(3). All active distribution electronics will be 750 MHz equipment, or equipment of higher bandwidth. All passive electronic components will be rated at 1 GHz or higher.

300.(a).(4). The cable system will be two-way activated upon completion of the system upgrade. This two-way activated capacity must be capable of supporting two-way high-speed Internet access via the cable system.

300.(a).(5). All power supplies will be inspected and replaced as necessary to provide reliable service; backup power supplies will be provided as described in more detail below.

300.(b). System functionality.

300.(b).(1). As designed, upgraded and maintained, the subscriber network must have a reliability comparable to the reliability of the highest quality cable systems whose initial construction or rebuild was completed after 1996. Reliability is measured in terms of number of outages, outage duration and number of subscribers affected by outages.

300.(b).(2). As designed, upgraded and maintained, the cable system must be adequately segmented to meet subscriber demand.

300.(b).(3). As designed, upgraded and maintained, the cable system must be able to deliver high quality signals that meet FCC technical quality standards.

300.(b).(4). The cable system must be designed, and must be maintained so that it has the upgradeability and flexibility to provide new services without the need for substantial new network construction.

300.(b).(5). Upon completion of the upgrade, all facilities and equipment will be installed (except customer premises equipment) so that the two-way active capability required by section 300(a)(4) is fully ready to operate upon subscriber request, with no further adjustments to the system.

300.(b).(6). The requirement that backup power be provided requires twenty-four-hour backup at the headend, three-hour rated backup at each node, three-hour rated backup covering coaxial amplifiers throughout the system, and six-hour rated backup for hub sites and optical transition nodes. Such equipment shall be constructed and maintained so as to cut in automatically upon failure of the commercial utility power; to revert automatically to a standby mode when alternating current power returns; and so that it complies with all utility and other safety regulations to prevent the alternate power supply from powering a "dead" utility line so as to prevent injury to any person. The term "rated" in this section refers to rated at 68 F. Backup power supplies will be monitored remotely to determine condition and when they have begun to operate due to loss of electrical power.

300.(b).(7). The system shall be capable of and shall deliver standard color and monochrome signals on all channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the cable system; and without noticeable sound distortion. The company shall use equipment generally used in high-quality reliable modern systems. This requires that equipment be installed at the headend to allow the company to cablecast signals in substantially the form received, without substantial alteration or deterioration (for example, the headend should include equipment that will transmit color video signals received at the headend in color, and stereo signals in stereo). Equipment must be installed so that all closed captioning programming received by the cable system shall include the closed caption signal so long as the closed caption signal is provided consistent with FCC standards.

A. 2. Palo Alto's technical standards:

SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES

7.1. Cable System Design and Functionality

…

(1) The Cable System will use an optical fiber-to-the-node architecture or a technology and architecture providing equivalent functionality, capacity and reliability.

(2) TCI [now Comcast] intends to deploy fiber optic cables to nodes, which serve no more than 760 residential subscribers per node.

(3) Sufficient fiber-to-the-node shall be constructed to allow segmentation of the node with no significant additional construction such that no more than 300 homes are required to share the return (upstream) bandwidth allocated for two-way services.

(4) All active electronics replaced or added after the effective date of this Agreement will be 750 MHz-capable equipment, or equipment of higher bandwidth. All passive components replaced or added after the effective date of this Agreement will be 1 Gigahertz-capable equipment.

(5) The Cable System will be two-way activated upon completion of the Cable System rebuild and/or upgrade, and TCI will maintain two-way activation until or unless market demand for services using such two-way activation is insufficient economically to justify the cost of continued maintenance of two-way activation. TCI shall notify the City in writing in advance of any discontinuance of two-way activation.

(6) The Headend shall be supported with 24-hour backup non-interruptible power supplies. Each node shall have three-hour backup and hub sites and optical transfer nodes shall have six-hour backup power supplies. Such equipment shall be constructed and maintained so as to activate automatically upon a failure of utility service, to revert automatically to a standby mode when utility service is restored, and to comply with all utility and other safety regulations to prevent the alternate power sources from energizing a “dead” utility line in order to prevent injury to any Person. Power to the nodes will be monitored remotely.

B. Interconnections: Although the world of cable is fractured into thousands of local franchises, the actual operation of these systems (dominated by a handful of cable giants) is much more seamless. Comcast uses internal network connections to insert advertising that runs through service areas that span several distinct franchises, for example, but many PEG operations remain isolated from their peers just a few miles away. Recognizing this problem, several forward-looking franchises now insist on a variety of interconnections, linking educational institutional institutions in the area, for example, or fostering programmatic exchange among neighboring PEG channels.

Palo Alto's interconnection requirement:

7.2. Interconnection.

7.2.1 Current Interconnection with Educational Providers. TCI [now Comcast] shall continue to provide at least the level of interconnection that is in place on the effective date of this Agreement between the Cable System serving the Service Area and those communities contiguous to the Cable System on the effective date of this Agreement, including the DeAnza-Foothills Community College and Stanford University. If the City requests that TCI interconnect the Cable System with another Cable Communications System in order to provide locally produced educational access programming from other qualified educational facilities, TCI shall promptly enter into negotiations with that other Operator to determine, among other matters, where the interconnection shall be located, how costs for the interconnection will be shared, and a schedule for promptly completing the interconnections. In the event that the interconnection request is for an area served by TCI or its affiliate, TCI agrees to provide such interconnection so long as TCI (or its affiliate, as applicable) is reimbursed by the requesting party for TCI’s reasonable time and material charges or costs required to provide such interconnection.

7.2.2 Cooperation. The City understands that interconnection will require the cooperation of other Operators. The City shall use reasonable efforts to assist TCI in achieving the cooperation necessary to achieve the interconnection; provided, however, neither Party shall be liable to the other Party or its Affiliates if either Party’s efforts fail to achieve the necessary cooperation.

B.2. St. Paul's requirement for interconnection with neighboring cable systems:

Section 303. Interconnection with neighboring CATV systems.

303.(a). The company shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state or federal regulatory agency which may be hereby established for the purpose of regulating, financing or otherwise providing for the interconnection of cable systems beyond the boundaries of the city.

303.(b). Upon city request, the company shall negotiate in good faith to interconnect the cable system with contiguous cable systems. Within three (3) months of a city request, the company shall report to the city the results of the negotiations. Where the company has negotiated in good faith with the cable operator of a contiguous cable system and where that operator refuses to interconnect, the city shall not penalize the company for such failure to interconnect. The city shall not require the company to interconnect where the company would be required to pay more than its pro-rata share of the interconnection costs based upon the number of basic subscribers served.

303.(c). Notwithstanding the above, except in the case of an unaffiliated cable operator of a contiguous cable system that refuses to interconnect, the company shall interconnect with all contiguous cable systems operated in the Minneapolis-Saint Paul metropolitan area no later than six (6) months after the effective date of this franchise, unless the city determines that a particular interconnection is not in the public interest. The interconnections shall permit:

303.(c).(1). The interconnected systems to exchange PEG programming intended to be carried on the subscriber network, including, by way of example and not limitation, live coverage of public meetings; and

303.(c).(2). Institutional network signals, including by way of example and not limitation, data transmissions so that governments on the interconnected systems can access remote databases, and video transmissions to permit teleconferencing.

B.3. Portland's interconnection requirements:

10.7 Interconnection with Ed-Net [a satellite-based, two-way audio, one-way video network, established as a state agency in 1989].

(A) Grantee will continue to provide the existing interconnection with Ed-net, accomplished indirectly through the Interconnect with the westside cable operator, as is in existence as of the effective date of this Franchise, until Ed-Net ceases operation.

(B) Grantee shall provide all necessary equipment at Grantee's Headend and all necessary Facilities on the Grantee's Cable System between Grantee's Headend and the Interconnection of the westside cable operator to accomplish the routing of Programming:

(1) from the Interconnection of the westside cable operator through the Headend onto any Access Channel on the Cable System and to the headends of other cable systems Interconnected with the Grantee; and

(2) from the Access Corporations, any program origination point on the Cable System, and the headends of other cable systems Interconnected with the Grantee, through the Headend to the Interconnection of the westside cable operator.

(C) Grantee will fully cooperate with Ed-Net personnel in identifying appropriate equipment to be used at the Ed-Net facility to accomplish Upstream and Downstream Channel transmissions.

10.8 Interconnection with other Cable Systems and Competitive Access Providers.

(A) Grantee shall continue without limitation all Interconnections in effect on the effective date of this Franchise.

(B) Grantee shall maintain Interconnections with all other major, contiguous cable systems in Washington, Multnomah and Clackamas Counties, Oregon and Clark County, Washington. The Interconnect Capacity shall provide the bi-directional capability to transmit Programming. The Interconnections shall be capable of receiving and delivering, among other things, Local Origination and PEG Access Programming produced by Grantee and other major, contiguous cable systems in Washington, Clackamas and Multnomah counties, Oregon and Clark County, Washington and Access Programming carried by the Grantee or those cable systems. The Grantee shall cooperate with the Jurisdictions in utilizing available Interconnect capacity to assist with video and data communications applications by local and state public and nonprofit organizations, including two-way applications between and among the Grantee, the Public Communications Network operated under the auspices of the Metropolitan Area Communications Commission, the Westside cable operator and Ed-Net. Upon prior approval by the Jurisdictions, the Grantee may credit Capital Costs of such Interconnection against funds set aside for Institutional Network extension under Section 9.1(C), pursuant to the procedures of that Section.

B.4. Monterey's requirements for interconnection with both affiliated and unaffiliated cable (and Open Video) systems in the area:

7.2 Interconnection.

A. Interconnection with TCI Systems [now Comcast].

The Grantee’s cable system (including the Institutional Network which shall be constructed pursuant to this Agreement) serving the City of Monterey and all TCI systems serving incorporated local governments within Monterey County and serving unincorporated Monterey County are served from a common headend and therefore function as a single cable system. The Franchisee shall take all necessary technical and construction steps to ensure that the communities which are served by that common headend are 100% interconnected for PEG access programming and institutional network (I-Net) services throughout the life of this Agreement. There shall not be a charge other than described in Section 7.3.H and the separate Institutional Network Agreement for the use of such interconnection (with TCI systems) for PEG access programming and I-Net services.

B. Interconnection With Other Systems Serving the City of Monterey and Other Adjacent Systems.

The Grantee shall take all necessary technical and construction steps to ensure that the Monterey cable system (as described above in Section 7) is interconnected with at least the following: all cable systems serving Department of Defense property which is located within the City of Monterey (Presidio of Monterey and the Naval Postgraduate School); all “willing” cable systems directly contiguous to the portion of the TCI cable system which serves the City of Monterey; and any Open Video System established pursuant to Section 653 of the Cable Act unless Federal Law changes and no longer requires such interconnection. This bandwidth shall provide the capability to transmit upstream channels and downstream channels in each direction, together with data, telemetry, audio, and other non-video signals using the INet and, when applicable, the residential network. The interconnection shall be capable of receiving and delivering, including but not limited to, PEG access programming and I-Net services to and from interconnected systems. If the City directs the Grantee to interconnect its cable system with another system, Grantee shall promptly enter into negotiations with such other system to determine where the interconnect shall be located and how costs for the interconnection will be shared, and to develop a schedule for prompt interconnections. The parties shall have one hundred twenty (120) days to reach agreement. For the purposes of this section, “willing cable system” means the franchised system of any cable operator who is otherwise willing to interconnect with Grantee’s cable system on fair and reasonable terms and who pays its own cost of installation and operation of facilities located within its own territory which are required for the interconnection.

C. Free cable connections: Recognizing the value of cable communications to schools, libraries, and other public institutions, many cities now require free cable connections as part of a community-service requirement.

Austin's service-to-the-community requirements:

SECTION 5. SERVICE TO COMMUNITY FACILITIES

5.1. Public Primary and Secondary Schools. If requested to do so by the school authorities, Grantee shall provide during the life of this Franchise each primary and secondary public school located in the Franchise area, and within one cable mile of the Cable System one (1) free cable television service outlet at the most popular service level. Each free outlet shall include a free Converter, if necessary, and maintenance thereof by Grantee. The hardware and the installation thereof for an internal video distribution system requested by primary and secondary public school authorities shall be provided at Grantee's cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

Grantee will, at the school's request, provide an appropriate interface to any internal video distribution system in the school, so long as the school insures that such internal system complies with the FCC's signal leakage and signal quality standards and does not interfere with or adversely affect the system, including the upstream capacity. There will be no charge for cable service on any additional outlets in the school except for a pass through of any charge imposed on Grantee by a program supplier, and Grantee may impose a charge for equipment for additional outlets.

Grantee will provide each connected school with a free connection to a Time Warner on-line service for personal computers to the extent it is available on Grantee's Cable System and Transmission Network. Upon request each connected school will receive one free modem and free access to the Time Warner on-line service for use during the school year. Additional modems will be made available, upon request, at cost. Free access to the Time Warner on-line service will be provided through each such modem for use during the school year. In addition, the Grantee will sponsor a workshop to educate teachers about the Time Warner on-line service and to provide them with an opportunity for hands-on training.

5.2. Public Institutions of Higher Education. If requested to do so by the public institutions of higher education authorities, Grantee shall provide during the life of this Franchise, each campus of a public institution of higher education located within the City of Austin and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

5.3. City Facilities. Upon the request of City authorities Grantee shall provide during the life of this Franchise each municipal facility owned or operated by the City and located within the City of Austin and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. All additional cable television hardware and the installation thereof requested by City shall be provided at Grantee's Direct cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F)….

5.4. County Facilities. Upon the request of County authorities Grantee shall provide during the life of this Franchise each County facility owned or operated by the County and located within the City and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

C.2. St. Paul's requirement for free cable connections for designated sites:

Section 305. Free drops to subscriber network.

305.(a). In addition to providing the institutional network drops required by this franchise, the company shall:

305.(a).(1). Continue to provide a free drop to the subscriber network and free basic and expanded basic service to each public and private school, public library branch, police and fire station, community center and public building and to such other institutions as have been requested by the city, where the drop and service had been provided prior to December 1, 1997;

305.(a).(2). Provide a free drop to the subscriber network and free basic and expanded basic service to each public and private school, public library branch, police and fire station, community center and public building that requests a drop in writing, and to such other institutions as the city may reasonably request from time to time. Where a drop requested under this section 305(a)(2) would require the company to install a drop longer than four hundred (400) feet in length measured from the closest street, the company may charge the location for the cost of the labor and materials required to extend the drop beyond the four hundred (400) feet.

305.(b). The company is only required to provide a single free drop to the subscriber network, to a single outlet at a point within the location selected by that location. However, the location may extend the drop to multiple outlets and receive free basic and expanded basic service at each outlet so long as such extension does not result in any violations of leakage standards which the company is obligated to meet. A location that wishes to install multiple outlets may do so itself, or may contract with the company to do so.

D. Free modem connections: With the addition of high-speed Internet access to cable's offerings, some communities are now adding free cable modems to the operator's community service obligations.

Palo Alto requires such service for public schools and libraries:

7.11.6 Cable Modem Equipment. In deploying and offering any Internet access service after completion of the System rebuild, TCI [now Comcast] shall provide to all public schools and public libraries meeting the installation standard specified in Section 7.11.5 and without charge and without offset against the franchise fee owed to the City by TCI under this Agreement, one free cable modem and free unlimited access to both the Internet and TCI’s affiliated cable modem service.

D.2. Montgomery County requires free modem service for county agencies under its Supplemental Institutional Network Services provision (Exhibit F of the franchise agreement):

SUPPLEMENTAL INSTITUTIONAL NETWORK SERVICES

If the Franchisee provides commercial cable modem service, the County may request use of such service at no charge subject to the conditions specified below. The County recognizes that if its use of this service exceeds the conditions below, the County will initiate corrective action to preclude substantial negative impact on subscriber services.

The Franchisee shall dedicate 2 Mbps of bandwidth, on a per channel basis, for shared cable modem connectivity in a VLAN environment for County locations. The network, with the interconnection described below, will allow each location access to any other location within the Institutional Network and the FiberNet or within the subscriber network in a secure fashion without using the Internet.

The Franchisee shall provide, at no expense to the County, up to 100 cable modems for use by County agencies in connection with services provided under this Exhibit. These modems shall remain the property of the Franchisee and shall be returned to the Franchisee at the end of the Franchise term, or when no longer required by the County to provide connections to the Institutional Network or the FiberNet. The County shall bear the cost of each additional cable modem provided by the Franchisee for this purpose, and any related installation cost. Only cable modems approved for use by Franchise may be placed on the network.

E. Emergency override: Another acknowledgement of the near-ubiquitious nature of cable communications, a number of cities now require an emergency alert system to be built into the cable platform.

St. Paul's emergency override requirement:

300.(f). Throughout the franchise term, the company shall provide and maintain all equipment necessary and all capacity necessary to allow for an audio and visual override on all channels simultaneously for public emergency announcements by the city. This emergency override system must be designed so that it can be activated remotely by the city, or those authorized by the city to utilize the system. It is the city's responsibility to develop a plan for its use of this capability, and the company's responsibility to cooperate with the city so that the plan may be implemented. The company shall not be responsible for any action overriding channels that may conflict with federal, state or local law. The emergency override system must operate in a manner consistent with any emergency alert system that the company is obligated to provide under federal or state law.

E.2. Austin's emergency override requirement:

SECTION 24. EMERGENCY OVERRIDE

24.1. Emergency Override. The Grantee shall maintain systems, equipment, and procedures permitting preempting of the regular signal on all channels with emergency warning signals originating from the City of Austin Office of Emergency Management. The following stipulations shall apply, except where and to what extent they may be preempted by FCC regulations:

24.2. The Director of the Office of Emergency Management (OEM) shall determine when the Emergency Cable Override is to be activated in response to actual or impending emergency conditions.

24.3. The Grantee shall provide and maintain all equipment, systems, software, services, security provisions, and procedures required for a fully operational emergency cable override warning system in accordance with FCC rules. Any equipment necessary for activation of the system by the Office of Emergency Management shall be provided by the Cable Operator. Activation points shall be, at minimum, the Austin-Travis County Emergency Operations Center and one other backup point within the Austin area specified by OEM.

24.4. The cable override shall consist of audio and crawler text signals as required by the Federal Communications Commission rules governing the new Emergency Alert System (EAS).

24.5. The system shall be tested as determined by the Office of Emergency Management not more than monthly and not less than annually.

24.6. The Grantee shall cooperate fully with the Office of Emergency Management in all other matters pertaining to a functioning emergency cable override system.

F. PEG quality-of-service guarantees: Recognizing that cable's record of technical performance is far from spotless, some cities have incorporated quality-of-service guarantees in their franchise agreements.

Portland's franchise includes a provision designed to guarantee the quality of PEG signals:

7.9 Change in Technology. In the event Grantee makes any change in the Cable System and related equipment and Facilities or in Grantee's Signal delivery technology, which directly or indirectly substantially affect the Signal quality or transmission of Access Programming, Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of Designated Access Providers or Access Programmers are not diminished or adversely affected by such change.

G. Technical assessment: As a means of ensuring continued quality-of-service guarantees, a number of cities have built periodic technical assessments into their franchise agreements.

Portland's technology assessment requirement:

11.5 Technology Assessment/Early Termination.

(A) The Jurisdictions may notify Grantee on or after January 1, 2002 that the Jurisdictions will conduct a Technology and Compliance Assessment of Grantee's Cable System. Upon completion of the Technology and Compliance Assessment, the Jurisdictions may reduce the term of the Franchise by not more than four (4) years if the Jurisdictions find that Grantee has failed to successfully comply with the conditions set forth in this Section. The Jurisdictions shall notify Grantee of such findings, and the basis therefore, on or before March 31, 2003.

(B) The Jurisdictions may reduce the term of the Franchise pursuant to Section 11.5(A) if the Jurisdictions find:

(1) Grantee is not in substantial compliance with the material terms and conditions of this Franchise, including without limitation, Sections 5 through 14;

(2) (a) Grantee's technology and performance are inconsistent with current overall industry technical practices and range and level of services, existing and planned, in either the one hundred (100) largest U.S. cable systems that have been renewed or entered into since January 1, 1997, or in cable systems of more than 50,000 subscribers in the Portland MSA ("Survey"), taking due consideration of the then current practices and trends in the industry; and Grantee has not agreed to conform with industry or Portland metropolitan area practice in the five (5) year period between 2005 and 2010 by implementing improvements that have been demonstrated in the Survey to be commercially feasible. The Jurisdictions shall designate an expert or experts in the area of cable television to conduct the Survey and to assess, in full consultation with Grantee, and advise the Jurisdictions whether Grantee meets the requirements of Subsection 11.5(B)(2).

G.2. Montgomery County's mid-term technical review and "Upgrade Option" requirements:

6 (v) Mid-Term Technical Review:

(1) In addition to any periodic performance evaluations conducted pursuant to Section 6(r) herein, the County may also conduct a Mid-Term Technical Review of the Franchisee's Cable System once during the eighth and ninth year of the Franchise. The Franchisee shall fully cooperate and assist the County in conducting such review.

(2) Purpose: The purpose of the Mid-Term Technical Review shall be to evaluate the technical performance and capabilities of the Franchisee's System, including the Institutional Network, to determine whether to require a system upgrade to conform with technical improvements then commonly in use in the industry and available on systems in communities similar to the County. Subject to the provisions of this Section 6(s), the County may amend this Franchise Agreement to require the Franchisee to upgrade its System to incorporate technical improvements (the "Upgrade Option").

(3) County's Initial Review: To determine whether to invoke the Upgrade Option, the County shall first commence a review of the Cable System. Such review shall be conducted to enable the County to determine the following: (i) whether the Cable System should be upgraded or rebuilt; (ii) whether the Cable System's technical standards should be revised or improved; (iii) whether additional channels, equipment, facilities or support are required for public, educational and governmental use of the Cable System; and (iv) in general, whether any other changes in Franchise requirements should be made. Each determination under this paragraph shall be based upon the reasonable cable-related needs and interests of the County and the community, considering the costs to the Franchisee of meeting those needs and interests during the remaining term of the Franchise.

(4) Franchisee's Report: To assist in the County's initial review, the Franchisee shall, at the County's request, promptly submit a report to the County describing advances in cable technology nationwide, the potential benefits and disadvantages of those advances for consumers, and any plans or timetables the Franchisee may have for instituting such changes in technology.

(5) Public Hearings: If, after conducting its initial review, the County determines that a system upgrade may be warranted, it shall hold a public hearing to enable the general public and the Franchisee to comment and to present additional information.

(6) Upgrade Order: Following such hearings, the County shall determine whether the exercise of the Upgrade Option is warranted, based upon the reasonable cable-related needs and interests of the community, considering the costs to the Franchisee of meeting those needs and interests. The County shall issue a written order ("Upgrade Order") stating whether an upgrade is required, describing any upgrade to be implemented, and setting forth the basis for its decision. If an upgrade is required, the County shall set forth any relevant conditions.

(7) Franchisee's Response. Within sixty (60) days after the County issues the Upgrade Order, the Franchisee shall notify the County in writing whether it will comply with the Order. If the Franchisee does not so notify the County within sixty (60) days, the Franchisee will be deemed to have agreed to comply with the Upgrade Order.

(8) Amendment of the Franchise Agreement. If the Franchisee agrees to comply with the Upgrade Order, the parties shall amend this Franchise Agreement accordingly.

(9) Rejection of the Upgrade Option. If, however, the Franchisee is unwilling to comply with the Upgrade Order, the Franchisee shall, notify the County in writing, pursuant to Section 626 of the Cable Act, that it wishes to commence proceedings to renew the Franchise. If, at the time of such notice, more than three (3) years remain in the term of the Franchise, such notice shall be deemed, by mutual agreement, to shorten the term of the Franchise and this Agreement so that the Franchise and this Agreement shall terminate thirty-one (31) months from the date of the notice.

H. Fiber requirements: Although, according to Baller Herbst, "… the FCC has ruled that cities cannot require cable operators to utilize specific transmission technologies in upgrading or rebuilding their cable systems," some communities have successfully incorporated fiber-optic requirements in their franchises.

Montgomery County's fiber optic requirement:

6 (d) (2) The System backbone connections shall utilize fiber optic links (headend to hubs, hubs to hubs, and hubs to nodes). The System shall be designed and engineered with redundant paths between the headend and all hubs. Fiber optic nodes, segmented into distinct service areas, shall be constructed to serve coaxial copper cable passing no more than 1,500 dwelling units per node. Individual nodes may serve cable passing a de minimis number of dwelling units in excess of 1,500, provided there is no effect on the performance characteristics of the node.

 

H.2. Montgomery County's provision for additional fiber capacity:

6 (s) Additional Capacity: Franchisee will notify the County in advance of the installation of any fiber optic capacity not contemplated by the initial design of the System, so that additional fiber may be installed, at the County's expense, on an Actual Cost basis for government and institutional use. If the County wishes to request additional capacity, it may notify the Franchisee within 15 days of receipt of Franchisee's notification that the County will request additional capacity.

I. Set-top attachments: While most set-top devices offered by cable companies remain "black boxes" beyond the control or configuration of individual subscribers, some franchises underscore existing FCC's provisions concerning set-top interoperability and retail availability.

Montgomery County's set-top box attachments provision:

6 (9) Consumer Equipment For Lease or Sale. Subject to applicable law or regulation, as part of the System, the Franchisee shall, consistent with 47 C.F.R. ' 76.984 and 47 U.S.C. ' 543(d), offer every Subscriber, at uniform prices and regardless of the level of service taken, the opportunity to lease from the Franchisee or to lease or buy from others Converters (including digital converters), including any associated software, that allow Subscribers to view a program on one channel while taping a program on another channel. To the extent permitted by federal law, Subscribers shall have the right to attach devices to the Franchisee's System to allow them to transmit signals or service to video cassette recorders, receivers and other terminal equipment, and to use their own remote control devices and Converters, and other similar equipment, as long as such devices do not interfere with the operation of the Franchisee's System or the reception of any cable Subscriber, do not serve to circumvent the Franchisee's security procedures, or are not used in any manner to obtain services illegally. The Franchisee, at no additional charge, shall provide information regarding the cable system to Subscribers which will assist them in adjusting such devices so that they may be used with the Franchisee's System.

 

 

Digital Upgrades/Advanced Uses

Digital Upgrades/Advanced Uses

A. Bandwidth set-aside

B. Digital PEG

C. New Technologies (e.g., Video on Demand)

D. Narrowcasting

E. Web hosting and streaming media

F. Advanced, bi-directional links

G. Interactive PEG services

In addition to being long and complex documents, franchise agreements are often "etched in stone," in effect, lasting for up to a decade or more. But while the agreement itself is thus frozen in time, the cable platform continues to evolve in a number of important ways. First, what was once a simple, one-way system for the delivery of video programming is rapidly becoming a much more robust, two-way system, in which on-demand programming, interactive program guides, personal video recorders, and telephone service are all part of cable's varied offerings. And the platform continues to evolve, with the promise of a new cable modem standard (DOCSIS 2.0) that will vastly increase both upstream and downstream capacity (making video conferencing possible, for example), as well as new forms of interactive television, Internet-based video delivery, and wireless implementations (as cable strives to become a digital hub for both residences and businesses).

It is imperative, therefore, that cities take a longer-range view of franchise negotiations, ensuring not only that existing community needs are met, but incorporating provisions in the franchise agreement that will accommodate new and emerging technologies for PEG and public-interest benefit. A portion of the new video-on-demand servers might be reserved for locally produced programming, for example, and video conferencing might be devoted to community forums, or free public wireless hot-spots might be linked to the cable-provided institutional network (I-Net, discussed in Section V). And as Baller Herbst have observed, "The future of the Internet is so promising, that prudent communities would do well to obtain as much high-speed access to the Internet as possible during cable franchise negotiations."

Vermont (one of a handful of states, including Connecticut, Rhode Island, New Jersey, and Alaska, that regulates cable at the state level) has taken a big step toward bringing the PEG concept into the 21st century. Under its rewritten cable statute (Rule 8.000), revised by the Vermont Public Service Board in collaboration with the Department of Public Service, Vermont's cable operators, and the Vermont Access Network, "Vermont's community access cable management organizations (AMO's) can request public access to the commercial features of the cable network in order to meet community needs. In addition to the 32 analog video channels currently provided by Vermont cable providers to more than 100 communities across the state, Vermonters will be able to gain access to new services such as public meetings on demand, audio channels and HDTV quality coverage. Rule 8.000 also outlines a process for connecting Vermont's 25 access management organizations with a statewide public access network (currently under design)." Perhaps most importantly, Vermont has updated its definition of public, educational, and government (PEG) video programming to include voice, data, and video under the "PEG Content" rubric.

For its part, cable operators are wasting no time maximizing system resources and profits alike by converting their networks for full digital transmission. According to a January 2005 Cable Digital News report, "…the cable industry finally seems poised to start making its much-ballyhooed shift to an all-digital format for its core video product." Depending on the compression technologies employed, a single 6-MHz analog channel will yield anywhere from 8 to 12 standard-definition digital TV streams. As Comcast Chief Technology Officer David Fellows explains, "Once we have the digital signals up there, we can begin to take back the analog signals.… [E]very time we take one analog signal back, we can offer 12 channels in its place in standard-definition, three channels in its place in high-definition."

There is a real danger, however, in an all-digital future that effectively bypasses cable's traditional video-delivery platform in favor of a single pipe carrying all manner of content--voice, video, and data--in the form of indistinguishable ones and zeroes. In that "converged world" of Internet protocol (IP) transmission, both franchise fees and regulatory authority alike may become mere vestiges of an earlier era. "As technologies converge and services are delivered over a single platform," warns James N. Horwood in the Spring 2004 Community Media Review, "there will be unrelenting pressure from industry for comparable government treatment of all providers and for it to be for minimal government involvement. This will place cable franchise fees, and resources available for PEG, at great risk."

But while the future of telecommunications regulation is as difficult to predict as the ultimate outcome of the digital revolution itself, communities and their PEG operations would be wise adopt a more flexible stance in anticipation of the changes that lie ahead. In his "Cable Architecture, PEG, and the Public Interest" presentation (PowerPoint) at the 2004 Alliance for Community Media annual conference in Tampa, Andrew Afflerbach of Columbia Telecommunications Corporation offered valuable advice on the kind of flexibility that will be needed as cable enters the digital era:

1. Seek opportunities in digital conversion:

• New channels

--Open

--Closed (training, internal use)

• VOD

--Storage space

--Connection to headend

--Remote management of server

--Ability to upgrade

• Training

--Video--also XML, HTML, Java

• Studio Equipment

--Digital--also storage and streaming

• Hosting of Web content

2. Flexibility in production environment

• Low-cost cameras, PC storage, editing

--Home electronic media environment

• Outreach to schools, community organization, public libraries

--Use of facilities

--New generation of producers and participant organizations/advocates

3. Flexibility in distribution technology

• Traditional video channel

--Especially live

• On-Demand

--Menu-selectable archive

• Web

--Serves viewers without cable

--Quality improving

--TV tuners/DVR/Set-top converters beginning to have Web capability (off cable modem or DSL)

• Interactive technology

--Polling, audience participation, gaming

4. Flexibility in distribution outlets

• Internet video

• Other broadband carriers

--Programming accessed through cable modem, DSL, fiber, wireless, over-the-air

--May be the future for commercial programmers as well

5. Become part of IP video distribution environment

• Use of data network for video transport

• Currently in backbone at headends and hubs

--Full-motion broadcast-quality video

--Reduces equipment costs, maintenance, and staffing needs

--Interoperates well with video-on-demand system

--Storage, management, scalability

• Next step--video over cable modems

--As modems have greater bandwidth and quality guarantees

--Modem with set-top converter & TiVo functionality

• Video technologically indistinguishable from data or voice “information service”

• Full-motion broadcast video will be available over the public Internet

--Content can come from anywhere on the Internet

--Content can be presented on any broadband network connected to the Internet

• Technology makes video distribution platform independent--as long as there is enough bandwidth

--Cable system

--Best-quality DSL

--Fiber-to-the-premises

--Broadband wireless

--Satellite

6. Ensure yourself access through the Internet

• Work to ensure your content is carried freely on the Internet

--Network providers and ISPs can prioritize or block traffic or act as a toll gate

--Work for open access or seek to make sure you have some right to have viewers see you

--Partner with other programmers or networks to promote your content

• Facilitate content development from a wide range of producers and production facilities

• Make your channel network-agnostic

A. Bandwidth set-aside: The most important reason to express the PEG capacity requirement in terms of bandwidth rather than channels is that the former accommodates an array of noncommercial applications and services, including those that the eventual transition to an Internet protocol- (IP) based digital system will facilitate. Thus St. Paul defines "channel" and "programming" in such a way as to permit flexibility for future uses.

St. Paul's definition of "channel" and "programming":

300.(h).(2). The term "channel" refers to capacity sufficient to transmit a standard NTSC television signal (6 MHz), but the channel capacity so designated may be used by the city or its designees to transmit information to subscribers in any format. The term "program" or "programming" as used in relation to the PEG channels or institutional network is not limited to video programming and instead shall mean any signal, message, graphics, data, or communication content service or broadcast-type program. The term "regional access channel" refers to a channel that is utilized to show PEG programming that originates in other communities in the Twin Cities region, or programming of interest to the region (although such programming may also appear on any appropriate access channel, at the discretion of the person responsible for managing the channel). The city may take advantage of compression or other technologies to transmit multiple signals on any channel, should it choose to do so.

B. Digital PEG: While the transition from analog to digital (for both terrestrial broadcasters and for cable systems) remains a work in progress, it is important to ensure that PEG will not be left out of the digital loop. Accordingly, St. Paul's franchise includes a stipulation concerning digital PEG.

St. Paul's digital PEG provision:

300.(l). Miscellaneous PEG requirements.

300.(l).(1). The company is required to deliver the PEG channels to subscribers in an analog format unless and until all other channels on the system are delivered in a digital format, or until the city directs otherwise. Digital PEG access channels shall have the same bandwidth and transmission quality as is used to carry any of the commercial channels that deliver programming to the company in a similar format. At all times, the PEG access channels must be receivable by subscribers without special expense, other than the expense required to receive basic service. Designated entities have no obligation to provide a signal to the company in a digital format. If the city requests that its PEG access channels be converted to digital format before the company has converted all other channels to digital format, the city is responsible for the cost of converting such channels to digital format.

 

B.2. Portland's franchise also includes a digital PEG requirement:

7.2 (C) Digital Transition. In the event that, and at such time as Grantee Activates frequency spectrum on the Cable System for video digital transmissions on the Residential Network, then Grantee:

(1) shall carry both analog and digital format transmission Channels simultaneously of PEG Access Channels under Section 7.2(A) when more than fifty percent (50%) of the analog commercial Programming Channels are converted to digital transmission format; and

(2) may decommission analog format Channels of PEG Access when more than seventy-five percent (75%) of the commercial Programming Channels are converted to digital format transmission.

C. New technologies: Recognizing that the cable platform continues to evolve, Austin's franchise includes a provision for PEG channels' adoption of new technologies: "… In the event it becomes both technologically and economically feasible to provide over the same Channel video, audio, and/or data signals, Grantee will meet and discuss with the City those alternative uses for the PEG Channels." (section 4.5) More generally, Montgomery County's franchise features an advanced technology requirement.

Montgomery County's technology requirement:

6(c) Integration of Advancements in Technology.

(1) In addition to any upgrades required herein, it is the responsibility of the Franchisee to periodically upgrade its Cable System to integrate advancements in technology as may be required to meet the needs and interests of the community in light of the costs during the remaining term of the franchise.

(2) To ensure that the Franchisee is carrying out its responsibilities hereunder, the Franchisee shall be required to submit a report on cable technology to the County every three years during the Franchise term. Each report shall describe developments in cable technology, and whether, how, and by what date the Franchisee plans to incorporate those technological developments into the System. In addition, the report shall describe the effect of those developments on public, educational, and governmental use of the Cable System, and the effect and compatibility of those technological changes on consumer electronic equipment. The report also shall describe how other cable companies have incorporated or are planning to incorporate the technological developments into their Systems and the estimated timetable for doing so.

C.2. Among the new technologies that cable companies are currently introducing, video on demand (VOD) holds the most promise for PEG operations. VOD would allow the most popular (or the most important) PEG programming to be viewed at any time. In its protracted franchise negotiations, San Jose has requested space for PEG programming on Comcast's video-on-demand servers.

San Jose's PEG VOD request:

Advanced functions. The company will provide and maintain capacity for PEG Video on Demand up to 5% of the capacity of each server serving a portion of the franchise area. It will also provide and maintain the means for conveniently programming the servers from the PEG centers. The programming will be as accessible as commercial programming to viewers on all relevant parameters (number of users who can access the same program at the same time, etc.). It will provide menu access equivalent to the menu access provided for commercial programs, and provide bandwidth so that the process of ordering PEG programming and the quality of the programming delivered is equivalent to commercial programming. The company will similarly design its system so that PEG users can take advantage of the capabilities of the cable system.

D. Narrowcasting: Just as advanced cable systems permit the targeting of advertising to specific households (via Comcast's Spotlight, for example), so will they permit the "narrowcasting" of programming to specific geographic areas within a franchise region.

Portland's franchise includes a requirement for targeted broadcasting:

7.6(E) Narrowcast Capability. To the extent feasible given normal Cable System Upgrade design, Grantee shall use good faith efforts to re-configure the Cable System to allow Designated Access Providers to Narrowcast Programming to Subscribers within the specific geographic areas as set forth in Section 7.3(C) as such areas exist at the time of Upgrade construction. In addition, prior to completion of the Cable System Upgrade, all capabilities for Narrowcasting in place on the effective date of this Franchise shall be maintained, including, without limitation, the capability of MCTV to distribute programming from its Program origination site to:

(1) Each cable system with which the PEG Access Channels are Interconnected; and,

(2) The Institutional Network and any Institutional Subscriber location.

7.7 Pre-Upgrade Live Origination Capabilities. Prior to the Cable System Upgrade:

(A) MCTV shall have the use of one (1) Upstream and one (1) Downstream Channel on the Institutional Network and two (2) Upstream Channels on the Residential Network. The purpose of these Channels is to ensure that MCTV has sufficient capacity to transmit live Programming Signals from any point on the Cable System to Residential Subscribers. To the extent that the Grantee can provide MCTV the ability to transmit live Programming by other means, the Jurisdictions may reallocate these Channels upon request of the Grantee; and,

(B) Grantee shall provide the functional ability, through Interconnects or other means, for MCTV to cablecast the Multnomah County Commission meetings live on an Access Channel.

D.2. Additionally, Portland includes a requirement for "closed channel" (narrowcast) capacity on the upgraded cable network:

7.2 (B) Closed Channels. After the Cable System Upgrade required under this Franchise, Grantee shall provide the capability to scramble at least three (3) of the Downstream Channels referred to in Section 7.2 (A) to serve as either open Channels or Closed Channels at the Designated Access Provider's discretion to the extent allowed under Federal law. The coordination of the Closed Channels shall be made by the Jurisdictions participating in the Intergovernmental Agreement referenced in Section 2.2(A) of this Franchise. Upon completion of the Upgrade, Grantee shall provide the capability to scramble one (1) such channel at its own expense and may not credit the costs against Section 9.1 [i.e., 3 percent of gross revenues set aside for PEG access capital funding]. Upon the Jurisdictions' request, Grantee shall provide the capability to scramble the two (2) additional scrambled channels and may credit the Incremental, direct costs against Access Capital Costs provided under Section 9.1(C).

E. Web hosting and streaming media: Although modest by today's standards, Arlington County's Web hosting request reflects the importance of online communications as an adjunct to standard PEG video programming:

In addition, the Certificate Holder [i.e., franchisee] shall provide the CAC [Community Access Corporation, which manages public access channels], at no charge, with Web Hosting Service . . .

For purposes of this Section ___, "Web Hosting Service" means

(i) up to 25MB of capacity on Certificate Holder's server and up to 1 GB/month data transfer capacity for access by Internet users to such World Wide Web content as the CAC may submit to the Certificate Holder for that purpose; and

(ii) the Certificate Holder shall allow the CAC access to the SSL protocol, in the event that the CAC elects to develop the capability to support credit card and e-commerce transactions.

E.2. Portland has also considered including a broadband platform requirement, as follows:

(F) Broadband Platform. Grantee shall provide the Facilities and Capacity necessary to provide access to its Broadband Platform for PEG Access, at no charge. At a minimum, Grantee shall provide to Designated Access Providers an Activated interface, power, grounding and space to co-locate a web server and a video encoder at Grantee's Headend (server and encoder to be provided by the Access Providers). Grantee shall provide initial Capacity to transmit Access Channels and archived Access Programming at a minimum bit rate of 4 megabits per second. Grantee shall periodically review the adequacy of Capacity under Section ___(F) [i.e., this paragraph] upon request of the Jurisdictions, and shall cooperate in increasing the Capacity to meet community needs and technology advances. Grantee may not restrict use of the Capacity, other than restrictions necessary for network management that apply to all.

F. Advanced, bi-directional links: To ensure the maximum flexibility in PEG programming options, Monterey's franchise includes a requirement for advanced bi-directional links between PEG facilities and headend.

Monterey's requirement for bi-directional links:

7.1.E. The Grantee shall install, replace as necessary, and maintain a dedicated bi-directional link that conforms to EIA RS-250 medium haul transmission standards between the access center and the headend. The link shall be completed within twelve (12) months of the effective date of the Franchise, or the date the access center is completed, whichever is later. The dedicated bi-directional link shall be designed so that the access center can: (a) send signals to the headend on multiple channels simultaneously (b) receive signals from other locations on multiple channels simultaneously (c) remotely route signals originated at the access center or at other locations onto any access or institutional use channels on the cable system; and (d) otherwise control the signals to allow for smooth breaks, transitions, and insertion of station IDs and other material. The Grantee shall provide plant, headend, and access center equipment necessary to transport the audio and video signals from the access center to the headend for distribution over the cable system which may include, but not be limited to, laser transmitters, modulators, processors, and switchers.

F. The Grantee shall install, replace as necessary, and maintain a bidirectional link that conforms to EIA RS-250 medium haul transmission standards and all cable plant and headend equipment required to make it operable so that City Hall (specifically City Council Chambers) will be able to send signals to the Access Center or other locations on the cable system using a bi-directional link. The Grantee is obligated to provide a total of one (1) fixed laser transmitter/receiver, and one (1) channel modulator for use at this location. The link between the City Hall and the Access center shall be completed within twelve (12) months of the effective date of the Franchise, or the date the access center is completed, whichever is later.

G. Interactive PEG services: Although the advent of truly interactive television (ITV) has been slow in arriving, Austin's franchise includes a provision for the adoption of interactive PEG services.

Austin's interactive PEG provision:

4.9. If Grantee provides interactive analog or digital services in connection with other video services, including, if practicable, capability which will allow for the selection of programs on a daily basis, or on a program basis or for other periods shorter than a day, Grantee shall, at the City's request, cooperate in a six month trial project to provide comparable interactive services in connection with the programming on one PEG channel (selected by the City)….

 

Financial Support

Financial Support

         A.  Franchise fees

         B.  Capital funding for PEG

         C.  Distinction between PEG support and franchisee fees

         D.  A funding partnership

The funding for PEG access channels, explains the Buske Group, "falls into two broad categories, funding for equipment and facilities and funding for access services. Typically, the funding for equipment and facilities is provided by the cable company. Under the Cable Act local franchising authorities have the ability to require and enforce a requirement of funds for this purpose in the franchise agreement."  Unlike capital costs (which under Section 624(b)(1) of the Cable Act are the responsibility of the cable operator), programming and operating expenses are normally shared between the cable company and the city (using of a portion of cable franchise fees received by the city under Section 622 of the Cable Act).

These lines of demarcation are often blurred in the franchise negotiation process, however.  In its legal challenge of the proposed San Jose cable franchise, for example, Comcast has argued that amounts contributed by an operator to support construction of an institutional network must be treated as part of the franchise fee payment.  Other cable operators have argued, moreover, that the cost of providing access services can be treated as a payment "in-kind" and deducted from the franchise fee payment owed.  But as James Horwood of Spiegel & McDiarmid explains in "Cable Franchise Renewal and Local Right of Way Management," "The Cable Act … does not state that the operator has the right to treat provision of services as in-kind payments.

Based on legislative history, there is a strong argument that access service requirements do not get counted against the franchise fee. The House Report underlying the 1984 Cable Act states, with respect to Section 622, that that section "defines as a franchise fee only monetary payments made by the cable operator, and does not include as a 'fee' any franchise requirements for the provisions of services, facilities or equipment." Id at 65, adding "[i]n addition, any payments which a cable operator makes voluntarily relating to support of public, educational and governmental access and which are not required by the franchise would not be subject to the 5 percent franchise fee cap."

The FCC adopted rules that provide that the costs attributable to satisfying franchise requirements shall include (47 CFR § 76.925): the sum of: (1) all per channel costs for the number of channels used to meet franchise requirements for public, educational, and governmental channels; (2) any direct costs of meeting such franchise requirements; and (3) a reasonable allocation of general and administrative overhead. The FCC's determination of costs associated with meeting franchise requirements, including costs of PEG, is particularly significant because of language added by the 1992 Cable Act to Section 622(c), 47 U.S.C. § 542(c), to provide that a cable operator may itemize, as a separate line item on subscribers bills:

(1) The amount of the total bill assessed as a franchise fee and the identity of the franchising authority to which the fee is paid.

(2) The amount of the total bill assessed to satisfy any requirements imposed on the cable operator by the franchise agreement to support public, educational, or governmental channels or the use of such channels.

(3) The amount of any other fee, tax, assessment, or charge of any kind imposed by any governmental authority on the transaction between the operator and the subscriber.

A.  Franchise fee:  The most basic aspect of the cable funding structure (although not necessarily tied to PEG support) is the 5 percent franchise fee, which is essentially the "rent" paid by the cable operator in exchange for the use of a community's rights-of-way (i.e., access to public property in order to string the wire and bury the lines that make the system possible). On October 4, 2001, the FCC ruled that cable operators may pass through to consumers and itemize on monthly bills the entire amount of a franchise fee assessed by the local franchising authority, including franchise fees from non-subscriber related revenue, pursuant to the Communications Act.

Austin's franchise fee arrangement is typical of such requirements:

SECTION 14. COMPENSATION TO THE CITY

14.1. General Compensation. For the reason that the Public Rights-of-Way to be used by Grantee in the provision of services within the boundaries of the Franchise Area are valuable public properties, acquired and maintained by the City at great expense to its taxpayers, and because the grant to Grantee of the use of said Public Rights-of-Way is a valuable property right without which Grantee would be required to invest substantial capital in right-of-way costs and acquisitions, the Grantee agrees to pay to the City as General Compensation during each year of this Franchise, a franchise fee consisting of 5% (five percent) of Grantee's Gross Revenue derived within the Franchise Area. Any other franchise granted by the City to a similarly-situated service provider for services allowed herein shall be granted on a competitively neutral basis…..

A.2.  Because franchise fees are limited to certain cable revenue streams (including non-subscriber revenues resulting from the selling of advertising, airtime, and other services via the cable system, but excluding voice and data services), and because such payments are based on the operator's own accounting practices, stipulations in the franchise for reporting requirements are also common. Montgomery County's franchise, for example, asks for "supporting information" to accompany each quarterly fee payment.

Montgomery County's franchise fee requirement:

8. FRANCHISE FEE.

…

 (c) Supporting Information. Each Franchise fee payment shall be submitted with supporting detail and a statement certified by the Franchisee's chief financial or accounting officer or an independent certified public accountant, reflecting the total amount of quarterly Gross Revenues for the payment period and a breakdown by major revenue categories (such as basic service, cable programming service, premium service, etc.). In the information provided with each payment, the Franchisee shall also indicate the number of subscribers within the corporate limits of each Participating Municipality. The County shall have the right to require further supporting information.

B.  Capital funding for PEG:  Because franchise fees (or a portion thereof) are not necessarily earmarked for PEG or even for telecommunications-related uses, stipulations for capital funding for PEG (i.e., support for facilities and equipment rather than for programming and operations) are especially important.  A number of communities have enacted generous capital funding requirements:

St. Paul's funding provisions:

Section 304. Support for public, educational and government use of the cable system.

304.(a). In addition to satisfying the other requirements of this Article III, the company is required to provide the following additional PEG use funding (as used in this section 304, PEG access refers to the channels, facilities and equipment used in connection with the channels on the subscriber network provided under section 300 and associated interconnections; PEG use includes PEG access and institutional network use):

304.(a).(1). On the effective date of the franchise, and on each of the first four (4) anniversaries of that effective date, the company will pay the city one hundred thousand dollars ($100,000.00), in 1997 dollars, for any use in connection with the institutional network.

304.(a).(2). The company will provide the following periodic capital grants for PEG access, in 1997 dollars:

(A). On the effective date of the franchise: five hundred thousand dollars ($500,000.00).

(B). On each of the third and seventh anniversaries of the effective date of the franchise: five hundred thousand dollars ($500,000.00).

(C). On the effective date of the franchise, and on each anniversary of the franchise: fifty thousand dollars ($50,000.00).

(D). If the franchise term is extended, the company will continue to pay the amount required by subsection 304(a)(3), and it shall pay an additional two hundred fifty thousand dollars ($250,000.00) on the eleventh anniversary of the effective date of the franchise.

304.(a).(3). In addition to the capital grant provided under section 304(a)(1)--(3), the company will provide the following capital grant for PEG use for so long as it continues to operate under this franchise: six hundred thirty thousand dollars ($630,000.00) per year, increased each year for the increase from the Minneapolis-St. Paul Consumer Price Index for all consumers, all items, with the base year for the calculation being 1997 (if there is no CPI for Minneapolis-St. Paul, the closest equivalent index will be used). Thus, by way of example, the payment due in 1999 would be multiplied by the increase in the CPI for 1998 over 1997 levels, and the resulting amount would be added to six hundred thirty thousand dollars ($630,000.00) to yield the total amount due. The payment due in the year 2000 would be the 1999 payment, plus an amount equal to the 1999 payment multiplied by the 1999 increase in the CPI over 1998 levels. The amounts owed for a year will be spread evenly over four (4) quarterly payments, with payments due on February 15, the second payment due on May 15, the third payment due August 15 and the fourth payment due November 15. Provided that, for the first year of the franchise, the first payment owed under this franchise will be made on the effective date and will be a pro-rated amount, reflecting the time remaining in the then-current calendar quarter from the effective date. For example, if the franchise became effective March 1, the company would pay fifty-two thousand five hundred dollars ($52,500.00) (one-third of the quarterly payment due on May 15).

B.2.  Palo Alto's provision for support of PEG facilities and equipment is based on a per-subscriber rate:

7.11.4 PEG Equipment and Facilities. Beginning seventy-five days after the effective date of this Agreement and continuing monthly throughout the term of this Agreement, TCI [now Comcast] shall pay to the City, on behalf of the Joint Powers, an amount equal to $0.88 per month per Residential Subscriber (as defined below) for PEG Access facilities and equipment. These grants will be used by the City in its sole discretion for any lawful PEG Access purposes.

B.3.  Portland's PEG capital funding requirement amounts to 3 percent of gross revenues:

9. PEG ACCESS CAPITAL FUNDING

9.1 3% Gross Revenue Annual Setaside. Grantee shall allocate three percent (3%) of Gross Revenues Annually to support PEG Access Capital Costs as follows:

(A) Grantee shall pay to the Jurisdictions one percent (1%) of Gross Revenues to provide support for Access Corporation Capital Costs funds. Pursuant to the terms of agreements between the Access Corporations and the Jurisdictions, the Jurisdictions shall use these funds to defray Access Capital Costs identified by the Access Corporations in their approved budgets. Funds not utilized in the year provided may be carried over into future years for Access Capital Costs and/or the Jurisdictions may apply such carryover amounts to funds granted by the Jurisdictions under Section 9.1(B).

(B) (1) Grantee shall pay to the Jurisdictions one percent (1%) of Gross Revenues as a dedicated Access Capital Development Fund to be granted by the Jurisdictions to PEG Institutions for Capital projects.

(2) With the Jurisdictions's approval, funds granted by the Jurisdictions under this Subsection in support of projects to be paid or constructed by the Grantee may be credited by the Grantee against payments to be made to the Jurisdictions under this Subsection.

(C) One percent (1%) of Gross Revenues shall be expended by Grantee to fund Institutional Network Capital requirements and extensions, subject to ongoing oversight and approval by the Jurisdictions in the manner provided in this Franchise. Expenditures under this Subsection must tangibly benefit PEG Institutional users and shall include only Incremental, direct costs, but shall not be disqualified by the Jurisdictions if they also accomplish a business purpose of Grantee.

(1) The Jurisdictions may require Grantee to advance additional funds under Section 9.1(C), up to an additional One Million Dollars, ($1,000,000), provided that Grantee may subsequently reduce annual payments under this Section by up to twenty percent (20%) of the amount advanced plus the time value of money as calculated pursuant to Section 14.9(D), until such reductions equal the amount advance plus the time value of money, pursuant to a schedule agreed to by the Jurisdictions and Grantee at the time of the advance.

B.4.  Monterey's capital funding requirement includes both initial and ongoing support:

7.11.E. Equipment and Facilities. The Grantee shall pay to the City, or the access management corporation designated by the City, for PEG access equipment and facilities the following amounts:

1. for initial equipment and facilities -- eight hundred thousand dollars ($800,000), to be deposited on the effective date of the Franchise; and

2. for ongoing PEG access capital support -- thirty-five cents (35¢) per basic subscriber per month, to be provided on a quarterly basis.

3. Nothing in this section 7.11.E. requires or shall be deemed to require the Grantee to make any payment which constitutes a Franchise Fee under 47 U.S.C. § 542.

B. 5.  Austin's PEG support requirement includes both capital and operating expenses (with the latter independent of franchise fee payments):

4.8. Grantee Contributions for PEG Access. Grantee shall provide funds for production facilities and equipment for PEG Access in an amount up to $1.5 million in the period January 1, 1997 through August 12, 2005 and up to $500,000 in the period August 13, 2005 to August 12, 2011. The City may increase or decrease the amounts of support provided by the Grantee under this paragraph and Section 7.3 and reallocate such amounts, provided that in no event shall Grantee's combined obligations thereunder exceed $3 million from the period January 1, 1997 through August 12, 2005 and $1 million in the period August 13, 2005 through August 12, 2011. All such facilities and equipment shall be for the benefit of the City and its residents and shall be subject to the sole control of the City, but Grantee may hold legal ownership title….

The Grantee also agrees to provide ongoing annual support grants, as provided in Exhibit B to this Franchise, for the operation of Public, Educational and Government Access.

… For purposes of this Franchise the Grantee agrees that such contributions, services, equipment, facilities, support, resources, and other things of value are not deemed to be (i) "payments-in-kind" or involuntary payments chargeable against the compensation to be paid to the City by the Grantee pursuant to Section 14 hereof, or (ii) part of the compensation to be paid to the City by the Grantee pursuant to Section 14 [i.e., franchise fee]….

EXHIBIT B

ACCESS GRANTS

     1.   The Grantee shall make annual payments in support of Public, Educational, and Government Access with funds obtained through a $0.35 per month charge on all residential, non-bulk Subscribers.  

     2.   All payments made under Paragraph 1 above shall be made quarterly at the time of the Franchise Fee payment required under Section 14 of this Franchise unless otherwise noted.  

     3.   The amount of the monthly per-Subscriber charge may be reduced by the City Council at its discretion upon sixty (60) days' written notice to Grantee.  

B.6.  Montgomery County's PEG capital grant:

7 (b) Capital Grant for Access Equipment and Facilities:

(1) The Franchisee shall provide a capital grant to the County, on its behalf and on behalf of the Participating Municipalities, of $2 million for the first year of the Franchise, $1.2 million in Year 2, and $200,000 per year, adjusted by CPI for the balance of the Franchise (the "Capital Equipment Support Grant") to be used by the County, in its sole discretion, for PEG equipment (including, but not limited to, studio and portable production equipment, editing equipment and program playback equipment), or for PEG-related facilities renovation, or construction. Payment of the Capital Equipment Support Grant shall be made quarterly, concurrently with the franchise fee payment. The first payment shall be due on the same date as the first franchise fee payment made by the Franchisee under this Agreement.

C.  Distinction between PEG support and franchise fees:  To avoid any possible misunderstanding (and to make certain that the cable operator meets its full financial obligation to the community), some cities have adopted franchise language that clearly distinguishes between franchise fees and PEG support.

St. Paul stipulates that PEG support is independent of franchise fees:

Section 306. Support not franchise fees.

The parties agree that any cost to the company associated with providing any support for PEG use required under this franchise (including the provision of the institutional network and support therefor) and payments made outside this franchise, if any, are not part of the franchise fee, and fall within one (1) or more of the exceptions in 47 U.S.C. § 542.

C.2.  Portland's separation of PEG capital funding and franchise fees:

9.4 PEG Access Support not Franchise Fees; Applicable Federal Law. Grantee agrees that financial support for Access Capital Costs arising from or relating to the obligations set forth in Section 9 shall in no way modify or otherwise affect Grantee's obligations to pay franchise fees to the Jurisdictions. Grantee agrees that although the sum of franchise fees and the payments set forth in Section 9 may total more than five percent (5%) of Grantee's Gross Revenues in any twelve (12)-month period, the additional commitments are not to be offset or otherwise credited in any way against any franchise fee payments under this Franchise.

D.  Funding partnership:  Although in some instances PEG support is limited to the per-subscriber fees that show up as a line-item on subscribers' bills every month, enlightened cities view the support of PEG as a collaborative, public-private effort.  Monterey, for example, describes PEG support in this manner.

Monterey's provisions for access channel support:

7.11.D. Support for Access.

1. The City and the Grantee agree that support of PEG access is a partnership.

2. The City will commit to dedicating a portion of its franchise fees to the support or PEG access as well as identifying facility space for a PEG access center. 3. The City directs and the Grantee agrees that commencing no later than sixty (60) days after the effective date of the Franchise, the Grantee shall pass-through seventy cents (70¢) per subscriber per month for any additional support for the Access Corporation. Such a pass-through will be paid quarterly to the Access Corporation designated by the City pursuant to Section 7.11.C.1. The Access Corporation initially designated shall be Access Monterey Peninsula. The Grantee shall have the right to identify this passthrough on subscriber's bill as the community access fee line item…. This passthrough amount to the Access Corporation may be increased (or decreased) if the City Council takes action by resolution to change the pass-through amount to be provided to the Access Corporation. The City agrees to meet and confer with the Grantee prior to any City Council action to approve an increase in the community access fee described in this section when such amount exceeds one dollar ($1.00) per subscriber per month.

D.2.  Montgomery County built matching support into the franchise transfer agreement that was settled in 1998, just prior to the issuing of a new franchise.

Montgomery County's PEG Access support requirement:

SECTION 4. PEG ACCESS SUPPORT

4.1. Effective July 1, 1998, the Franchisee shall pay to the County an amount equal to $1.5 million in each year of the renewed Franchise Agreement, adjusted annually by the CPI (the "PEG Support Fund"). Payments made under this provision shall be made quarterly. Beginning in the first year of the Franchise, the County shall distribute a portion of the PEG Support Fund equal to $50,000 per year adjusted annually by the CPI to each of the following PEG Channels: City of Rockville; City of Takoma Park; and the Montgomery Chapter of the Maryland Municipal League. Provided, however, that in each of years 6 though 15 of the Franchise, the County's obligation to distribute a portion of the PEG Support Fund to each PEG Channel is conditioned on appropriation and encumbrance by the operating authority for each PEG Channel, within the same fiscal year, of a matching amount equal to that distributed to it by the County. To the extent the operating authority for a particular PEG Channel spends less than the amount otherwise required of the County under this Section 4.1, the amount required of the County shall be reduced to a level equal to the amount spent by the Participating Municipalities. The County may use these funds at its discretion for support for PEG access.

4.2. The PEG Support Funds are to be deposited in the County's Cable Television Special Revenue Fund and specifically designated for PEG access purposes. The funds do not constitute franchise fees.

 

 

Institutional Networks (I-Nets)

Institutional Networks (I-Nets)

         A.  High-capacity and low-capacity sites

         B.  Noncommercial uses of I-Nets

         C.  Interconnections and switching and routing requirements

         D.  Supplemental I-Net services

Perhaps the least understood element of franchise negotiations is the institutional network (I-Net), a noncommercial, wide-area network used most often by government agencies, but which can also extend further into community via schools, libraries, PEG facilities and nonprofit organizations.  "Cities are currently utilizing, or negotiating to use, I/Nets in a number of ways," as Baller Herbst explain.  "Applications include closed caption programs; training for members of fire, police and other city departments; high speed data transmission among government buildings; centrex-type services; monitoring and control of automobile traffic; video arraignment; distance learning; geographic information systems; and utility uses such as load management, meter reading and demand-side-management services."  As a Columbia Telecommunications Corporation report explains, "A properly designed I-Net can transmit large amounts of data very quickly--far more quickly than current methods such as dial-up phone lines, or even dedicated T-1 lines. An I-Net can also be linked to the Internet."

"In some cases," adds Joseph Van Eaton in "Municipal Franchises:  Opportunities, Pitfalls and Alternatives," (Word document) "the 'I-NET' is a frequency set aside on the established network; in some cases, the operator provides fiber optic links, and the community is responsible for purchasing end-user equipment necessary to 'light' the fiber and use those links; in some cases, operators agree to build these networks at marginal cost, and to provide a pool of funds that can be used to pay for a certain amount of construction and equipment.  In any case, the I-NET language needs to be crafted so that both parties understand what is required to assure that the resulting network will be useable. Typically, I-NETs must be individually tailored to local needs, and integrated with the community's existing information systems."

Palo Alto's franchise renewal, for example, required Comcast to construct a network of fiber optic cable connecting the public facilities and schools within Menlo Park, East Palo Alto, Atherton, and portions of San Mateo and Santa Clara counties, comprising 70 sites in all.  Offering video, voice, and data connections between the I-Net sites and the Community Media Center, the I-Net system has greatly enhanced the broadcast and telecommunications capabilities of several communities in the area. "In addition," the city manager notes, "the I-Net can also provide connectivity between sites that are now served by other telecommunications services. By connecting sites over the I-Net, K-12 educational institutions, the cities, and community organizations may be able to eliminate current leased line telecommunication costs and gain significantly greater network performance."  In Pittsburgh, similarly, the franchise signed in 2000 called for three institutional networks--one for city offices, police stations, and other city sites; another for city schools; and a third for city libraries and museums.

One of the most ambitious I-Net plans is Portland's, which calls for both high-capacity and low-capacity sites.  Other well-conceived I-Net plans include those of Monterey (with some 65 sites in all, including 20 City of Monterey facilities, 10 belonging to the local school district, and 10 connected with miscellaneous governmental and higher education/research partners), Austin (with 257 miles of 400 MHz broadband coaxial cable), and Montgomery County (with annual $1.2 million capital grants).

Portland's I-Net requirements:

8.2 New System Institutional Network Design.

(A) In conjunction with the Upgrade set forth in Section 11, Grantee shall install, Activate and maintain on its Upgraded Cable System certain Capacity to be referred to as the Institutional Network. The I-Net shall utilize whatever Capacity is necessary on the Fiber portion of the Cable System and whatever additional equipment and Fiber or coaxial cable is necessary to provide for the Upstream and Downstream I-Net Capacity requirements of this Franchise. The Institutional Network shall include installed equipment to fully provide for the switching and routing of Signals between the Institutional and Residential users of the Cable System as described specifically in Section 8.6. Grantee shall also reserve three (3) six (6)-foot standard rack spaces in the Headend for I-Net processing equipment.

(B) High Capacity I-Net Locations.

(1) In conjunction with the design of the Upgraded Cable System, Grantee shall provide to the Jurisdictions a detailed design and cost estimates for a High Capacity I-Net overlaying the Residential Network with a bi-directional Capacity of 180 MHZ from each Fiber Node to and from PEG Institutions in each Fiber Node area, a Capacity of 400 MHZ to and from each Fiber Node to the serving Distribution Hub, a Capacity of four (4) x 500 MHZ to and from each Distribution Hub and the serving Transport Hub, and a Capacity of four (4) x 500 MHZ in each direction between the Transport Hubs. The Incremental, direct costs under Subsection 8.2 (B) (1) to design and provide cost estimates for the I-Net from the Fiber Node to the High Capacity I-Net sites shall be allocated from funds expended by Grantee under Section 9.1 (C).

(2) Within sixty (60) days after receipt of the design and cost estimates for the High Capacity I-Net described in Subsection 8.2 (B)(1), the Jurisdictions shall advise Grantee of the Fiber Nodes and High Capacity I-Net locations that the Grantee shall construct, shall Activate and shall connect in conjunction with Upgrade of the Cable System. The Incremental, direct costs related to the High Capacity I-Net under Section 8.2(B)(2) and (3) shall be allocated from funds expended by Grantee under Section 9.1(C).

(3) Grantee shall Activate such portions of the High Capacity I-Net constructed pursuant to Subsection 8.2(B)(2) as are designated by the Jurisdictions. The initial Activated Fiber Nodes shall have a Capacity of at least 180 MHZ to and from the node to the High Capacity I-Net locations. The Activated Capacity shall be at least 400 MHZ to and 60 MHZ from the Fiber Node to the Distribution Hub. The initial Activated Capacity from the Distribution Hub to the Transport Hub and between the Transport Hubs shall be a minimum of 400 MHZ in each direction.

(C) Low Capacity I-Net Locations. Low Capacity I-Net Locations shall have a minimum of 8 MHZ Upstream and 12 MHZ Downstream Capacity installed, Activated and reserved for I-Net use from the nearest Fiber Hub. The Jurisdictions have estimated that they will have approximately five hundred (500) Low Capacity I-Net Locations. The actual number will be determined by the Jurisdictions subsequent to the effective date of this Franchise provided that, in no case, shall the functioning of the Low Capacity I-Net Locations adversely affect the functioning of the Residential Network. The Grantee and the Jurisdictions shall jointly develop procedures for use of the Low Capacity I-Net Locations and remedies for technical problems that arise from such use. From each Fiber Hub to the I-Net switching center this entire Upstream and Downstream Capacity shall be independent of any other hub to allow Frequency Reuse. Grantee may reclaim Upstream and Downstream Capacity to Low Capacity I-Net Locations in 1.5 MHZ increments to meet its bona fide commercial need. The Grantee shall provide, at a minimum, ninety (90)-days written notice to the Jurisdictions prior to the date the Grantee desires to reclaim any portion of the Capacity. In the event that the Grantee finds it necessary to reclaim the final remaining two (2) 1.5 MHZ non-contiguous Upstream increments and three (3) 1.5 MHZ non-contiguous Downstream increments of the Low Capacity I-Net Capacity, the Grantee shall provide notice of not less than one hundred and eighty (180) days and shall provide a conversion plan to the Jurisdictions to upgrade all Low Capacity I-Net Locations to High Capacity I-Net Locations or to substitute equitable Capacity in order to provide for Low Capacity I-Net uses under this Subsection. If the Grantee reclaims more than the minimum of two (2) 1.5 MHZ non-contiguous Upstream increments and three (3) 1.5 MHZ non-contiguous Downstream increments of the Low Capacity I-Net Capacity, the Grantee shall, at the Jurisdictions' request, provide upgrades at Incremental, direct cost to all Low Capacity I-Net Locations according to the conversion plan. Grantee may credit these costs against Access Capital Costs provided under Section 9.1(C). Low Capacity I-Net Locations shall include all PEG Institutions located within the Franchise Area defined in Section 4.1, and shall have Institutional Network Capacity, as set forth under this Subsection, available for use upon installation of Residential Service.

A. 2.  Monterey's I-Net requirements:

7.3 Institutional Network Design.

A. In conjunction with the upgrade set forth in Section 7.1, the Grantee shall install, activate and maintain on its upgraded Cable System certain capacity to be referred to as the Institutional Network (I-Net). The I-Net shall utilize whatever capacity is necessary on the fiber portion of the cable system and whatever additional equipment and fiber or coaxial cable is necessary to provide for the Upstream and Downstream I-Net Capacity requirements of this Franchise. The Institutional Network shall include installed equipment to fully provide for the switching and routing of signals between the institutional and residential users of the Cable System as described specifically in Section 7.3.D.

B. The institutional network shall include all equipment required so that the public buildings, educational institutions, and designated locations listed as Full Capacity I-Net locations on Attachment A [65 sites] (collectively called public agencies) will be able to transmit and receive broadband video, data, and voice communications between two (2) or more public buildings (including the PEG access facility) within the City of Monterey either directly or via the headend. The institutional network serving the City of Monterey shall also be able to transmit and receive broadband video and data communications between two (2) or more public buildings (including the PEG access facility serving Monterey) within all of the areas served by Grantee’s cable systems within Monterey County which are provided with an I-Net connection pursuant to the franchise agreement between the franchising jurisdiction and the Grantee either directly or via the headend. The locations on Attachment A designated as Low Capacity I-Net sites will be able to transmit and receive data. The I-Net shall be reserved for the sole use of the City and its designated public agencies. Upon request the Grantee shall extend the I-Net to any public agency building located within the Franchise area which is constructed or acquired during the term of the Franchise. The Grantee shall install, operate and maintain cable system, headend, and network components to the point of “demarcation” at the public buildings necessary to provide the activated path between the transmitting and receiving locations. The Grantee shall provide the interface devices at each I-Net location as provided in the separate I-Net Agreement for no charge other than that described in Section 7.3.H. The public agency users of the institutional network shall be responsible for the installation, operation and maintenance of terminal and interface equipment within the public buildings, except as otherwise provided in this Section or Section 7.2.

C. The I-Net shall include optical fibers between the I-Net headend described in Section D and the designated full capacity I-Net locations. The City shall designate in the Institutional Network Agreement the number of optical fibers which shall be available for I-Net use during the term of this Franchise, including any extension of the term.

1. Full Capacity I-Net Locations. Multiple optical fibers shall link full capacity I-Net locations to the I-Net headend described in Section 7.3.D.

2. Limited Capacity I-Net Locations. These I-Net locations shall include I-Net locations whose sole function is to provide telemetry functions. The Grantee shall make available on the subscriber network, for public agency uses a minimum of 1 MHz of upstream bandwidth for data gathering and a minimum of 1 MHz of downstream bandwidth for data dissemination. The Grantee shall provide symmetrical data modems (10 Mbps upstream and downstream) which shall be installed at all public agency locations designated as low capacity I-Net locations. The cost for such data modems shall be reimbursed to the Grantee pursuant to section 7.3.E. The City shall advise Grantee of the Limited Capacity I-Net locations that the Grantee shall construct, shall activate and shall connect in conjunction with upgrade of the Cable System. There shall be no cost to the public agency users for use of the Limited Capacity I-Net, except that should the cost of any “drops” to these locations exceed the standard drop costs incurred by the Grantee, then the public agency being served shall be responsible for such cost.

D. The I-Net shall be constructed so as to interconnect all user locations with a central processing point at the PEG access center or other location mutually agreed upon between the City and Grantee. The Grantee shall provide equipment racks for the installation of I-Net related equipment and shall make provision for 24-hour back-up power to its equipment located at the PEG access center which is provided pursuant to Section 7.1.C. The Grantee shall provide all necessary equipment for processing and switching all uses of the I-Net for video, voice, and data communications whether those uses are in analog or digital form which is expandable and capable of switching transmissions within and between both the subscriber and institutional networks.

E. Grantee shall also make available to the City and the designated INet users for purchase, at Grantee’s cost, modulators, fiber transmitters/receivers and other similar I-Net user equipment.

A.3.  Austin's I-Net requirement/upgrade:

SECTION 7. PROVISION OF INSTITUTIONAL NETWORK

7.1. Current System. The Institutional Network presently consists of approximately 257 miles of 400 MHz broadband coaxial cable mid-split two-way plant, switching, routing equipment, monitoring equipment, network management equipment, and user drops. Grantee shall provide to the City the Institutional Network including maintenance, operation, monitoring and provisioning at Grantee's Direct Cost.

7.2. Grantee Capital Obligations. Grantee shall provide the City a design for upgrading the Institutional Network within sixty (60) days of the effective date of this Franchise. The City will review, negotiate any changes and approve the design within thirty days of delivery. Grantee shall commence the INet upgrade in conjunction with the Rebuild. Grantee shall provide the City with quarterly construction updates indicating work completed, planned construction for next quarter, and projected time-line for project completion. The Institutional Network upgrade, shall be completed within forty months of the effective date of this agreement.

7.2.1. Upon request of the INet/XNet Authority and approval by the City Council, Grantee shall provide up to fifty (50) miles of extensions to the Institutional Network.

This mileage shall be in addition to the upgrading of the present 257 mile Institutional Network. Any extensions in excess of the fifty (50) miles provided by this Franchise shall be paid for by the user, however overall system mileage shall not exceed 325 miles during the term of this agreement. Grantee shall reconfigure and/or replace with optical fiber all amplifier cascades sufficient to attain a carrier to noise ratio of 46 dB and all applicable FCC standards.

7.2.2. Grantee shall upgrade the INet system to provide benchmark reliability of 99.5% and benchmark accuracy of 10-6 bit error rate for data signals, excluding any external factors such as end user equipment. Grantee shall not be subject to any penalty or sanction due to failure to meet the bit-error rate standard, provided that Grantee is meeting all other INet technical performance standards and is working in good faith with the City to meet the bit-error rate standard.

7.2.3. Grantee shall take appropriate measures to ensure that video signals arriving at the switching point (Master Control) for insertion into distribution channels meet all FCC standards and maintain a minimum of 46 dB carrier-to-noise ratio, excluding any external factors such as end-user equipment. Grantee shall not be subject to any penalty or sanction due to failure to meet the carrier-to-noise standard, provided that Grantee is meeting all other INet technical performance standards and is working in good faith with the City to meet the carrier-to-noise standard.

7.2.4. Grantee shall install monitoring and testing equipment on the INet sites so that Grantee can electronically detect and isolate network malfunctions. Grantee shall consult with the City to explore feasibility of providing remote read-only access to network management equipment so as to allow users to isolate network problems from user equipment problems.

7.3. Grantee Contributions for INet. Grantee shall expend funds to provide:

7.3.1. The upgrade of the INet as specified above over the period of 40 months commencing with the adoption of this Franchise;

7.3.2. User drops upon request of the INet/XNet Authority and approval by the City Council;

7.3.3. All other requirements of this Section.

Grantee's expenditures under this Section 7 shall not exceed $1.5 million in the period January 1, 1997 through August 12, 2005 and $500,000 in the period August 13, 2005 through August 12, 2011. The City may increase or decrease the amounts of support provided by the Grantee under this paragraph and Section 4.8 and reallocate such amounts, provided that in no event shall Grantee's combined obligations thereunder exceed $3 million in the period January 1, 1997 through August 12, 2005 and $1 million in the period August 13, 2005 through August 12, 2011.

Grantee shall provide a written report to the City every quarter as to the INet upgrade and expenditures.

7.4. Maintenance. Grantee shall provide demand maintenance twenty-four hours a day seven days a week and shall maintain the network to operate at or above FCC standards at all times. Grantee may charge the City a fee for use of the Inet ("Maintenance Fee"). The amount of the fee shall be limited to Grantee's Direct Cost to maintain and operate the Inet and shall not exceed $250,000 annually which may be adjusted no more frequently than every twelve months indexed to the Austin Regional Annual Consumer Price Index ("CPI")….

A.4.  Montgomery County's I-Net requirement:

7 (h) Institutional Network:

(1) Beginning in the second year of the Franchise, the Franchisee shall provide an annual capital grant of $1.2 million (the "I-Net Capital Grant") to support installation, construction, operations, and maintenance of the County's FiberNet and associated network equipment, and the Institutional Network, subject to the adjustments described below.

(A) Payments of the I-Net Capital Grant shall be made quarterly, on the same dates as the Franchisee's quarterly franchise fee payments under this Agreement.

(B) After the first year of such payments, the amount shall be adjusted annually by CPI.

(C) In each of years 5 through 15 of the Franchise, Franchisee's obligation to provide the I-Net Capital Grant is conditioned on appropriation by the County Council and encumbrance by the County, within the same fiscal year, of an equal amount for purposes consistent with this Section 7(h) (Institutional Network) or with Section 7(i) (Supplemental Institutional Network Services) including costs associated with installation, construction, operation and maintenance of the County's FiberNet and associated network equipment. To the extent the County spends less than the amount otherwise required of the Franchisee under Section 7(h)(1), the amount required of the Franchisee shall be reduced to a level equal to the amount spent by the County.

(D) Funds provided by the Franchisee pursuant to this Section 7(h)(1) may be used by the County for any purpose consistent with this Section 7(h) (Institutional Network) or with Section (i) (Supplemental Institutional Network Services), including maintenance of its FiberNet and associated network equipment.

(2) The County shall reimburse the Franchisee for the Actual Cost incurred by the Franchisee to maintain, pursuant to the standards set forth in Exhibit B, Institutional Network facilities constructed by the Franchisee under Sections 7(h)(4), 7(h)(5) and 7(h)(7).

(3) In each of the first two years of the Franchise, the Franchisee shall provide the County a separate capital grant of $1.25 million to fund the purchase and installation of electronic interior equipment needed to send and receive transmissions on the County's FiberNet and the Institutional Network. This grant shall be payable quarterly.

(4) As part of the System Rebuild required under Section 6(d) (System Rebuild), the Franchisee shall provide, in each Headend-to-Hub fiber backbone, 6 fibers dedicated for use as part of the Institutional Network.

(5) Concurrent with the installation of fiber optic capacity during the System Rebuild, in addition to the commitment in paragraph 4 above, the Franchisee shall complete construction of an Institutional Network at no cost to the County to the locations listed in Exhibit B [77 sites], as an extension of the County's existing Fiber Net.

B.  Noncommercial use of I-Net:  Although cable operators tend to downplay the utility of I-Nets in the course of franchise negotiations (when they're not trying to prevent such networks entirely, as in San Jose), I-Nets can actually be put to a range of noncommercial uses, as the following franchise excerpts suggest:

Portland's provisions for noncommercial use of I-Net:

8.7 Limits on Use. The Jurisdictions agree and shall require as a condition of any separate agreement between the Jurisdictions and PEG Institutional users that:

(A) PEG Institutional users shall not re-sell, lease, or assign use of Institutional Network Capacity or Services to any third party.

(B) PEG Institutions may provide Non-Commercial services to other PEG Institutions utilizing I-Net Capacity and Services, and may charge a fee for I-Net Capacity use, as long as the fee does not exceed the fee that the PEG Institutions pay to the Grantee for use of the I-Net Capacity under Subsection 8.3(B)(1).

(C) PEG Institutions may provide Non-Commercial services to not-for-profit organizations, and agencies of the State of Oregon and the United States utilizing I-Net Capacity and capabilities, provided that the PEG Institution pays the Grantee a fee for such I-Net Capacity use determined in accord with Subsection 8.3(B)(2). The PEG Institution may charge the organization or agency for the fee as long as the charge does not exceed the fee that the organizations and agencies would pay to the Grantee for use of the Cable System Capacity determined in accord with Subsection 8.3(B)(2).

(D) The I-Net may be used by PEG Institutions for non-commercial, educational and governmental purposes, and for the transmission of Programming but for no other purpose; .…

B.2.  Monterey's stipulation regarding use of the I-Net:

7.3. K. The I-Net may be used by the City and such other users as it designates. The parties agree that the I-Net will not be used for commercial purposes; however, this limitation shall not prevent the use of the I-Net for any bona fide public purpose even if such use generates revenues to reimburse the City, or other users designated by the City, for the provision of services. For the purposes of example, but not limitation, a bona fide public purpose which would generate revenues and which would be permitted under this section would include the transmission of educational programming for a fee or the sale of GIS data maintained by the City.

B.3.  Montgomery County's provision for nonprofit I-Net use:

7 (h) (8) The Institutional Network provided by the Franchisee to the County pursuant to this Section is intended to be used for governmental, educational and other noncommercial purposes only. The County shall not sublease, barter, sell, or give away capacity on the Institutional Network to any private entity to use for a commercial purpose without Franchisee's prior consent during the period this Franchise Agreement is in effect. The limitations in this Section 7(h)(8) shall not prevent the County (i) from subleasing, bartering, selling, or giving away capacity on the Institutional Network to any public or nonprofit entity for noncommercial purposes; or (ii) from subleasing, bartering, selling, or giving away any capacity on any portion of the County's FiberNet that is not part of the Institutional Network to any entity including a private entity, to use for a commercial purpose. In this Section 7(h)(8), "commercial purpose" means any activity that competes with any service the Franchisee is permitted to provide under this Franchise Agreement or any other applicable agreement with the County.

C.  Interconnections and switching and routing requirements:  The value of the I-Net to the community is enhanced considerably by the number and type of interconnections it offers. Portland, for example, requires interconnections with other municipal fiber networks, with PEG institutions, and with other designated institutions in the community.

Portland's I-Net interconnection, switching, and routing requirements:

8.4 Interconnection of I-Net to Jurisdictions Cable and Public Fibers of Other Carriers. Upon request by a Jurisdiction, Grantee shall Interconnect its I-Net to:

(A) the fibers set aside for Jurisdictional use under other telecommunications franchises, insofar as such Interconnection is technically feasible; and

(B) any Jurisdiction-owned cable system and such other communications systems.

If a Jurisdiction authorizes such Interconnection, Grantee may credit the Incremental, direct cost of such Interconnection against the funds provided under Section 9.1(C) [i.e., 3 percent of gross revenues set aside for PEG access capital funding].

8.5 Joint Use of Fiber or Conduit. So long as it is technically feasible and does not interfere with normal operations of the Cable System, the Jurisdictions and the Grantee shall cooperate to use existing conduit or Fiber for the purpose of expanding the I-Net to achieve the most economical coverage.

8.6 Required PEG Access and Institutional Network Switching and Routing Capabilities. Grantee's Upgraded I-Net shall, at a minimum, permit PEG Institutions to transmit Programming via Upstream Institutional Network Channels to Grantee's Headend, and then to Downstream Open or Closed PEG Access Channels on Grantee's Residential Network, or to Downstream Institutional Network Channels serving any PEG Institution on the Cable System. The design of the Cable System, and equipment installed by the Grantee, shall enable the switching and routing of Institutional Network Signals from Upstream to Downstream transmission to be accomplished remotely via computer and modem by Designated Access Providers or other institution designated by the Jurisdictions, without the assistance of the Grantee. As a demonstration project, Grantee shall initially provide terminations clearly identified for each individual forward and return path to and from the I-Net in the Headend, to facilitate patching and routing capability. The Grantee shall provide and facilitate the design and installation at its Headend of an expandable 10-channel by 10-channel RF video switching mechanism for the I-Net, with three (3) additional outputs for the Residential Network PEG Access Channels, with all associated equipment, as necessary to demonstrate an initial level of switching pursuant to this Section. Grantee shall provide a minimum of three (3) data translators to allow demonstrations of the data transmission capability of the I-Net. The provision of such demonstration projects shall occur after consultation with Grantee and coordination by the Jurisdictions participating in the Intergovernmental Agreement referenced in Section 2.2(A) of this Franchise. Grantee may credit the Incremental, direct costs to achieve requirements in this Subsection against the funds provided under Section 9.1(C).

C.2.  Montgomery County's provision for I-Net interconnections includes links to "any similar Network":

7 (h) (11) The County may, at the County's cost, interconnect the Institutional Network with any similar Network, allowing exchange of the full range of signals that may be carried on the I-Net. The County may request that interconnection to the I-Net be permitted at any location, including the Franchisee's headend and hubsite, and major Franchisee fiber runs passing near County network facilities. Permission by the Franchisee shall not be unreasonably denied.

C.3.  Austin's requirement for interconnection of its I-Net specifically mentions the Greater Austin Area Telecommunications Network (GAATN):

7.5. Interconnection. Grantee shall provide a direct fiber connection between Grantee's headend and the Greater Austin Area Telecommunications Network (GAATN) network control center in order to provide for GAATN video feeds or data that need to be routed to the subscriber PEG access channels. The capital cost of providing interconnection shall be counted against the capital amount set forth in Section 7.3.

D.  Supplemental fiber capacity:  Even in the absence of a detailed I-Net plan, communities can benefit from a request for "dark" or unused fiber, which the city can put to use ("light up") at a later date.  Montgomery County, for example, requested six additional fiber strands for subsequent county use.

Montgomery County's provision for additional fiber capacity:

7 (k) Additional County Fiber Capacity: In addition to any other obligations of the Franchisee under this Agreement, the Franchisee shall provide and install at no cost to the County six optical fibers for County use. Such fiber shall be installed between points in the Franchisee's System on which the Franchisee is installing fiber optic cable for its own use, up to a maximum of eighty (80) miles. The County shall notify the Franchisee where such cable shall be installed in the course of the system design process established pursuant to Sections 6(e) and 6(f). If, upon completion of the system design process, the County has not exercised its right to direct installation of any portion of the eighty miles of fiber to be provided under this Section, the County may require the Franchisee to install additional fiber as part of the post-rebuild design modifications process described in Section 6(h).

 

Customer Service

Customer Service 

         A.  Customer service standards

         B.  Subscriber Bill of Rights

         C.  Privacy

         D.  Continuity of service

         E.  Installations and connections

         F.  Customer service and complaint procedures

         G.  Performance monitoring

         H.  Reports and recordkeeping requirements

         I.    Franchise violations

Amendments to the Cable Act in 1992 gave local franchise authorities broad authority to implement customer service and consumer protection standards, covering such items as telephone support, appointments, interruptions of service, and billing (as well as construction schedules and other construction-related requirements).  Cities have the option of incorporating the FCC's customer service standards in the franchise during the renewal process or, with 90 days' notice to the operator, at any other time. Although these standards were issued by the FCC, that agency explains that "…local franchising authorities are responsible for adopting and enforcing customer service standards. Franchising authorities may also adopt more stringent or additional standards with the consent of the cable operator or through enactment of a state or municipal law."  Typical of such standards are Austin's and Montgomery County's.

Montgomery County's customer service standards:

9 (c) Telephone and Office Availability.

(1) Each Franchisee shall maintain an office at a convenient location in the County that shall be open during Normal Business Hours to allow Subscribers to request service, pay bills, and conduct other business.

(2) Each Franchisee will maintain at least one local, toll-free or collect call telephone access line which will be available to subscribers 24 hours a day, seven days a week. Trained representatives of the Franchisee shall be available to respond to Subscriber telephone inquiries during Normal Business Hours.

(3) Under Normal Operating Conditions, the following standards shall be met by the Franchisee at least ninety (90) percent of the time, measured quarterly.

(A) Telephone answering time shall not exceed thirty (30) seconds, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional thirty (30) seconds.

(B) A customer will receive a busy signal less than three percent (3%) of the time.

(C) When the business office is closed, an answering machine or service capable of receiving and recording service complaints and inquiries shall be employed. Inquiries received after hours must be responded to by a trained representative of the Franchisee on the next business day. To the extent possible, the after-hours answering service shall comply with the same telephone answer time standard set forth in this Section.

(4) The Franchisee must hire sufficient staff so that it can adequately respond to customer inquiries, complaints, and requests for service in its office, over the phone, and at the Subscriber's residence.

(d) Scheduling and Completing Service. Under Normal Operating Conditions, each of the following standards shall be met by all Franchisees at least 95% of the time, as measured on a quarterly basis:

(1) Prompt Service. Installations located up to 400 feet from the nearest Public Right-of Way shall be completed within seven (7) business days after the order is placed or Miss Utility marking, or at a later time if requested by the Subscriber. Repairs and maintenance for Service Interruptions and other repairs not requiring work within a Subscriber's premises must be completed within 24-hours of the time the Subscriber reports the problem to the Franchisee or its representative or the interruption or need for repairs otherwise becomes known to the Franchisee. Work on all other requests for service shall be scheduled for the next available appointment, or at a later time mutually agreeable to the Franchisee and the Subscriber. Franchisee shall exercise its best efforts to complete such work within three (3) days from the date of the initial request, except installation requests, provided that the Franchisee shall complete the work in the shortest time possible where, for reasons beyond the Franchisee's control, the work could not be completed in those time periods even with the exercise of all due diligence; the failure of the Franchisee to hire sufficient staff or to properly train its staff shall not justify the Franchisee's failure to comply with this provision.

(2) Service Times. The Franchisee shall perform service calls, installations, and disconnects at least during Normal Business Hours. In addition, maintenance service capability enabling the prompt location and correction of outages that affect 50% or more of channels in any tier or a channel for which there is a separate charge affects shall be available Monday through Friday from the end of Normal Business Hours until 12:30 a.m., and from 8:00 a.m. until 12:30 a.m. on Saturdays, Sundays, and holidays.

(3) Appointments. The appointment window for installations, service calls, and other installation activities will be either a specific time or, at maximum, a 4-hour time block during Normal Business Hours. Where a Subscriber cannot conveniently arrange for a service call or installation during Normal Business Hours, the Franchisee shall make reasonable efforts to schedule service and installation calls outside Normal Business Hours for the express convenience of the Subscriber.

(4) Cancellations. The Franchisee may not cancel an appointment with a Subscriber after the close of business on the business day preceding the appointment. If the Franchisee's representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, the Subscriber will be contacted, and the appointment rescheduled, as necessary, at a time which is convenient for the Subscriber.

(5) Emergency Maintenance. The Franchisee shall keep an emergency system maintenance and repair staff, capable of responding to and repairing system malfunctions or interruptions, on a twenty-four (24) hour basis at all times, and under Normal Operating Conditions shall provide an immediate response to System Outages twenty-four (24) hours a day, seven (7) days a week .

(6) Other Inquiries. Under Normal Operating Conditions, billing inquiries and requests for service, repair, and maintenance not involving Service Interruptions must be acknowledged by a trained customer service representative within twenty-four (24) hours, or prior to the end of the next business day, whichever is earlier. The Franchisee shall respond to all other inquiries within five (5) business days of receipt of the inquiry or complaint.

(7) To the extent consistent with federal law, no charge shall be made to the Subscriber for repairs or maintenance of Franchisee-owned equipment or facilities, except for the cost of repairs to the Franchisee's equipment or facilities where it can be shown that the equipment or facility was damaged by a Subscriber.

(8) Mobility-Limited Subscribers. With regard to mobility-limited Subscribers, upon Subscriber request, the Franchisee shall arrange for pickup and/or replacement of converters or other Franchisee equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).

(e) Interruptions of Service: The Franchisee may intentionally interrupt service on the Cable System only for good cause and for the shortest time possible and, except in emergency situations or to the extent necessary to fix the affected Subscriber's service problems, only after a minimum of forty-eight (48) hours prior notice to Subscribers, the County, and municipal PEG channel operators of the anticipated service interruption; provided, however, that planned maintenance that does not require more than two (2) hours' interruption of service that occurs between the hours of 12:00 midnight and 6:00 a.m., shall not require such notice to Subscribers, but shall require notice to the County no less than twenty-four (24) hours prior to the anticipated service interruption. Brief interruptions of service of less than five minutes necessary to conduct planned maintenance shall not require notice to Subscribers, the County, or municipal PEG channel operators.

(f) Notice to Subscribers.

(1) The Franchisee shall provide the following materials to each Subscriber at the time Cable Service is installed, at least annually thereafter, and at any time upon request. Copies of all such materials provided to Subscribers shall also be provided to the County.

(A) a written description of products and services offered, including a schedule of rates and charges, a list of channel positions, and a description of programming services, options, and conditions;

(B) a written description of the Franchisee's installation and service maintenance policies, delinquent subscriber disconnect and reconnect procedures, and any other of its policies applicable to its subscribers;

(C) written instructions on how to use the cable service;

(D) written instructions for placing a service call;

(E) a written description of the Franchisee's billing and complaint procedures, including the address and telephone number of the County office responsible for receiving Subscriber complaints;

(F) a copy of the service contract, if any;

(G) notice regarding Subscribers' privacy rights pursuant to 47 U.S.C. ' 551;

(H) notice of the availability of universal remote controls and other compatible equipment (a list of which, specifying brands and models, shall be provided to any Subscriber upon request).

(2) Subscribers and the County will be notified of any changes in rates, programming services or channel positions, and any significant changes in any other information required to be provided by this section, as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers and the County a minimum of thirty (30) days in advance of such changes and other significant changes if the change is within the control of the cable operator.

(3) All Franchisee promotional materials, announcements, and advertising of residential Cable Service to Subscribers and the general public, where price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view or pay-per-event programming, all promotional materials must clearly and accurately disclose price terms and in the case of telephone orders, the Franchisee shall take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers before the order is accepted.

(4) The Franchisee shall maintain a public file containing all notices provided to Subscribers under these customer service standards, as well as all promotional offers made to Subscribers. Copies of all notices, promotional or special offers sent to Subscribers and any agreements used with Subscribers shall be filed promptly with the County. All forms and notices distributed to customers which describe customer service policies and procedures shall be subject to County approval. County response to Franchisee's requests for review shall be made within five (5) working days of Franchisee's submission, and approval shall not be unreasonably withheld.

(g) Billing.

(1) Bills shall be clear, concise, and understandable. Bills must be fully itemized with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall clearly delineate all activity during the billing period, including optional charges, rebates, and credits.

(h) Rebate Policy: In the event of a Service Interruption of one or more channels to any subscriber, the Franchisee shall repair the Service Interruption as soon as possible. This obligation is satisfied if the Franchisee offers the Subscriber the next available repair appointment within the twenty-four hour period following the Service Interruption, or at the request of the Subscriber, to a mutually convenient later time for the repair call, and successfully repairs the Service Interruption during the agreed appointment. If the Service Interruption is not repaired at the time of the scheduled appointment, the Subscriber will receive a credit of 10% of the Subscriber's normal monthly bill for each 24 hour period, or segment thereof, that the Service Interruption continues beyond the scheduled repair call.

B.  Subscriber Bill of Rights:  An even more aggressive approach to consumer protection is the adoption of a subscriber bill of rights, which cities such as Seattle and Washington, DC, have undertaken.

Seattle's Cable Customer Bill of Rights:

ABOUT YOUR CABLE CUSTOMER BILL OF RIGHTS

Why does Seattle have the Cable Customer Bill of Rights?

In early 1999, the Seattle City Council held numerous public hearings and received many comments about cable services. You told us that you wanted better service – and we listened! The City’s Office of Cable Communications worked with City Council to develop your Cable Customer Bill of Rights to ensure that cable customers in Seattle would get competent, responsive service from the cable companies. The Bill of Rights also established procedures and remedies if you haven’t gotten competent, responsive service. Seattle is currently one of very few cities that have a Bill of Rights for its citizens who subscribe to television and Internet cable services. We believe that the Bill will help us – you, the cable companies, and the City of Seattle – work together for excellent customer satisfaction.

What does the Cable Customer Bill of Rights Do?

The Cable Customer Bill of Rights has been working to accomplish several things. Our primary goal is to help you get the best service possible! To achieve this, the Bill of Rights established levels and quality of service to ensure your satisfaction. Specific areas covered in the Bill are Courtesy, Accessibility, Responsiveness, and Services for Customers with Disabilities, Customer Information, Customer Privacy, Safety and a Satisfaction Guarantee. The Bill calls for employees of the cable companies to “be courteous, knowledgeable and helpful” and “provide effective and satisfactory service in all contacts with Customers.” 

The Bill of Rights requires cable companies to meet standards for Accessibility. These include having walk-in service centers open weekdays until 7:00 p.m. and on Saturdays from 9:00 a.m. to 5:00 p.m. and local or toll free telephone access lines available during normal business hours for service or repair requests or to answer questions about your bill. The Accessibility provisions also require that your phone calls are answered promptly and that you do not get a busy signal. Last, the Accessibility provisions require the cable companies to have dispatchers and technicians on call 24 hours a day, every day, for emergency purposes. 

Responsiveness is also addressed in the Cable Customer Bill of Rights. The Bill requires standard installations for TV and Internet within seven days of your request and within any available four-hour block of time. In the event of system outages, Responsiveness regulations require correction within 2 to 24 hours, depending on the extent of the outage and its source. Clear reception requirements are spelled out, as are regulations for treatment of your property, including landscaping. Responsiveness provisions also discuss billing procedures, including credits, refunds, and deposits as well as what customer service representatives can do for you when you call with a complaint.

Services for Customers with Disabilities are required under the Cable Customer Bill of Rights. Your cable company provides these services at no charge. Under provisions of Customer Privacy, your cable company is prohibited from monitoring what programs you watch without your prior written consent. They are also prohibited from selling your name or information about you to anyone else, without your prior written consent.

The Cable Customer Bill of Rights also specifies that when the cable company installs your service, they must provide you with various types of information, including a complete version of the Cable Customer Bill of Rights, which this brochure summarizes; products and services offered and their prices; installation and service maintenance policies; and policies about your privacy. Your cable company is also required to provide information on programs carried, channels and any changes to programming or channel positions.

Safety provisions in the Bill of Rights require that cable installation and equipment meet laws guaranteeing your safety and that of your property. In the event that a potential unsafe condition is reported to your cable company, they must respond immediately to correct the unsafe condition.

The Cable Customer Bill of Rights also values Customer Satisfaction, requiring your cable company to guarantee your satisfaction for new or additional cable service.

How Do I Get the Cable Company to Help Me?

Another major component of the Cable Customer Bill of Rights is procedures for your cable company’s handling your calls. In addition to courteous service, under the Bill of Rights you are also entitled to a rapid response (all questions or complaints must be answered within 15 days). If you do not agree with the response, or do not hear from your cable company within 15 days, please get in touch with us, your City of Seattle Office of Cable Communications. You can call our Cable Hotline at 206-684-849 or 206-386-1989 weekdays or e-mail us at www.cityofseattle.net/cable/comment. To help ensure that your cable company can provide good service, please read the Tips for Getting Good Service listed below.

Tips for Getting Good Service

1. If you have a question or complaint, always try your cable company first.

2. While we know you may be frustrated, if you are courteous with the customer service representative, they’ll be courteous to you.

3. Always get the name of the person who handles your call.

4. Make sure you give the customer service representative the name of the person on your bill – this will help them figure out who you are more easily. Please be aware, however, that your cable company is prohibited by Federal law from giving out account information to anyone but the account holder. It would be helpful then to have the account holder get in touch with your cable company, or to have more than one person listed on the account.

5. If you have a question or complaint, get in touch with your cable company as soon as possible.

6. If you are sending your complaint by mail, do not send it with your bill. Make sure you send it to the address listed at the top of the bill. Please do not send it to the City.  If you do send it to us, we’ll forward it, but it takes time and may end up putting your account into arrears.

7. Be very specific about what it is you are asking about. If you have more than one question or complaint, it would be helpful to write them down so you can remember all your points when you talk to the cable company. It is also helpful if you can tell your cable company specific dates, times and duration when you may have had interrupted service, no show appointments, poor reception, etc.

8. Be specific about what it is you want the cable company to do. If you need service, ask for it. If you deserve a credit, tell them.

9. If you did not receive an answer to your question or complaint from the person who takes your call, ask to speak with a supervisor.

10. If you are still not satisfied, and if you are a Seattle resident, please get in touch with us at http://www.cityofseattle.net/cable/commentor through the Cable line at 206-684-8498, or call Brenda Tate at 206-386-1989.

What Can The City Do For Me?

What we can do:

• We will listen to your questions or complaints.

• We will work with your cable company to resolve your issue.

• We will get back to you usually on the same day to let you know we’ve heard from you and within 15 days (provided we don’t need too much additional information) with a resolution to your questions or complaints.

• We will have someone from the cable company contact you after we have spoken with them.

• We will compensate you if we are unable to resolve your issue with the cable company and we agree with you.

• We will send you a copy of the complete Cable Customer Bill of Rights. If you prefer, you can get it from your cable company or read it over the web at our site at www.cityofseattle.net/cable.

What we can’t do:

• Be the first source you turn to. You should go to your cable company first. For AT&T cable TV, call toll free 1-877-824-2288. For AT&T @Home call toll free 1-888-824-8101. For Millennium Digital Media call toll free 1-800-829-2225.

• Schedule your appointments with your cable company.

• Install cable service or perform repairs to your service or property.

• Accept your mail or in person payments. Please send payments to your cable company or make payments at one of your cable company offices.

• Accept returned equipment; it must be returned to your cable company.

How Can I Get In Touch With the City’s Office of Cable Communications?

You can call the 24-hour Cable line at 206-684-8498 or 206-386-1989 during normal business hours. If you prefer, you can comment over the web at: http://www.cityofseattle.net/cable/comment.

Cable Discount Program

If you meet certain income criteria and are a senior, disabled, and/or living in subsidized housing, you may be eligible for a discount on your cable bill. For information, please call 206-684-0500.

B.2.  Washington, DC's Cable Customer Service Bill of Rights:

As a District cable television consumer, you have the following rights:

1. Consumers are entitled to receive high-quality cable television service including a clear picture and programming that meets consumer needs.

2. Consumers should expect to be notified at least 48 hours in advance of any scheduled interruption of cable television service.

3. Consumers have the right to receive dependable service, free of unnecessary outages. Consumers shall be credited one-day’s worth of service upon request for any service outage over 4 hours, and automatically for any outage over 12 hours.

4. Consumers are entitled to receive at least 30 days notice, prior to any changes in programming, channel line-up, rates or terms of service.

5. Consumers have the right to speak with a customer service representative by telephone within a reasonable amount of time or in person and receive courteous, professional and knowledgeable assistance from such representative.

6. Consistent with applicable law, consumers are entitled to request and to receive an appointment within 7 days of ordering service for a standard installation or upgrade of services.

7. Consumers are entitled to the prompt repair of service interruption or television reception problems. Total loss of picture shall be repaired within 24 hours of a consumer’s notification to a cable operator. All other reception problems must be repaired within 48 hours of consumer’s request.

8. Consumers are entitled to schedule service appointments to occur within a reasonable period of the day and not to exceed a 4-hour appointment window.

9. Consumers have the right to an accurate monthly bill that contains all pertinent information including: payment due date, an itemized listing of all charges and fees and the late fee assessment date.

10. Consumers have the right to disconnect service at no charge, except for the payment of any outstanding account balance.

11. Consumers are entitled to have appointments honored by the cable operator. An appointment may not be cancelled by the cable operator after close-of-business of the day prior to the appointment without reasonable attempts to contact the consumer on location.

12. Consumers are entitled to receive a copy of the work order describing all work performed during an appointment.

13. Spanish-speaking consumers have the right at all times to speak to a Spanish-speaking service representative.

C.  Privacy:  Especially as cable service has expanded to include Internet and telephone service, customer privacy has become even more important.  Such protection is now a basic part of cable franchise agreements.

St. Paul's privacy policy:

Section 206. Subscriber privacy.

206.(a). No signals, including signals of an interactive communications channel, shall be transmitted from a subscriber terminal for the purposes of monitoring individual viewing patterns or practices without the express written permission of the subscriber. Neither the company, the city nor any other person shall initiate or use any procedure or device for procuring information or data from a subscriber's terminals or terminal by any means without the prior valid authorization of the affected subscriber. Valid authorization shall mean written approval from the subscriber which shall not have been obtained from the subscriber as a condition of service, except in those situations in which authorization is needed for billing, and which may be revoked by the subscriber at any time without penalty of any kind whatsoever. The request for such permission shall be contained in a separate document with a prominent statement that the subscriber is authorizing the permission with full knowledge of its provisions. Such written permission shall not extend longer than one (1) year; provided, however, that the subscriber shall have the option to renew upon expiration. No penalty shall be invoked for a subscriber's failure to provide or renew such authorization. Such authorization shall be required for each type or classification of signals transmitted from a subscriber terminal.

206.(b). The company shall not collect, compile or retain subscriber data except as necessary for internal business purposes. Neither the company, the city nor any of their agents or employees shall, without the specific written authorization of the affected subscriber, provide data identifying or designating any subscriber to any party other than to the company and its employees or agents for internal business use. This shall include, but not be limited to, lists of the names and addresses of such subscribers or any lists that identify the viewing habits of subscribers. Written permission from the subscriber shall not be required for the systems conducting systemwide or individually addressed electronic sweeps for the purpose of verifying system integrity or monitoring for the purpose of billing. Confidentiality of such information shall be subject to the provisions of this section.

C. 2.  Monterey privacy protections:

6.2 Privacy. In Addition to the requirements of Section 15.5 of the Enabling Ordinance, the City and the Grantee shall maintain diligent vigilance with regard to possible abuses of the right of privacy of any subscriber, programmer, or any other person resulting from any device or signal associated with the cable system.

6.3 Sale of Subscriber Lists and Personalized Data.

A. The Grantee shall be subject to the provisions of federal law regarding limitations on the Grantee's collection and use of personally identifiable information, and other issues involving the protection of subscriber privacy.

B. Nothing in this section shall be read to limit the City's right to adopt other consumer/customer protection laws.

D.  Continuity of service:  Service interruptions have long been the bane of cable subscribers, and many franchise agreements now include continuity-of-service standards.  St. Paul's is typical of these requirements.

St. Paul's requirement concerning "continuity of service":

Section 205. Continuity of service mandatory.

205.(a). It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the company are honored. In the event that the company elects to overbuild, rebuild, modify or sell the system, or the city gives notice of intent to terminate or fails to renew this franchise, the company shall undertake all reasonable efforts to ensure that all subscribers receive continuous, high-quality, uninterrupted service regardless of the circumstances.

205.(b). In the event of a change of franchise, or in the event a new operator acquires the system, the company shall cooperate with the city, new company or operator in maintaining continuity of service to all subscribers. During such period, the company shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system.

205.(c). In the event the franchise is revoked or terminated, the company may be required to continue to provide service for a reasonable period as directed by the city in order to assure an orderly transition of service from the company to another entity. During any such transitional period, the company shall operate its cable system in accordance with the requirements of this franchise and applicable law.

205.(d). In the event the company fails to operate the system for four (4) consecutive days without prior approval of the city or without just cause, or willfully fails to provide service in accordance with its obligations hereunder for any period, the company will be deemed to have abandoned its cable system. The city may, at its option, do any or all of the following:

205.(d).(1). Operate the system or designate an operator until such time as the company restores service under conditions acceptable to the city or a permanent operator is selected. If the city or a designee is required to fulfill this obligation for the company, the company shall reimburse the city or its designee for all reasonable costs or damages in excess of revenues from the cable system received by the city or its designee that are the result of the company's failure to perform.

205.(d).(2). Declare the franchise forfeited and require the company to remove its cable system from the city by a time specified by the city, as provided in Article II, section 212.

205.(d).(3). Take possession of all or a portion of the abandoned facilities, in accordance with Article I, section 122(d).

205.(d).(4). Impose liquidated damages as provided for in this franchise.

205.(d).(5). Exercise any other remedy available to it as a matter of law or equity.

E.  Installations and connections:  Many franchise agreements include provisions concerning the rates and logistics of installations and connections.

Montgomery County's provision concerning installations and connections:

9 (b) Installations, Connections, and Other Franchisee Services.

(1) Standard Installations. Except as federal rate regulations may otherwise require, the Franchisee shall not assess a Subscriber any cost other than a standard installation charge for service drops of one hundred seventy-five(175) feet or less, to the primary outlet, unless the Franchisee demonstrates to the County's satisfaction that extraordinary circumstances justify a higher charge. Except as applicable law may otherwise require, where a drop exceeds one hundred seventy-five (175) feet in length from the nearest Public Right of Way, the Franchisee may charge a subscriber an additional charge, pursuant to the Franchisee's "long drop" policy, for any drop up to four hundred (400) feet long.

(2) Location of Drops. The Subscriber's preference as to the point of entry into the residence shall be observed whenever feasible. Runs in building interiors shall be as unobtrusive as possible. The Franchisee shall use due care in the process of installation and shall restore the subscriber's property to its prior condition. Such restoration shall be undertaken as soon as possible after the damage is incurred and shall be completed within no more than thirty (30) days after the damage is incurred.

F.  Customer service and complaint procedures:  Given the cable industry's generally low customer-satisfaction ratings (at the very bottom of the American Customer Satisfaction Index, in fact), complaint procedures have become a standard feature in many franchise agreements, including St. Paul's.

St. Paul's customer service and complaint procedures:

Section 208. Customer service and subscriber complaint procedures.

208.(a). The company shall comply with all federal and state customer service standards, and in addition will comply with the customer service requirements established by the city from time to time. Without limiting its obligation to comply with customer service standards established under federal, state and local law, the company shall comply with the customer service standards set forth in this franchise, which standards shall be treated as minimum, not maximum requirements. In the event of conflicts between standards, the stricter requirement shall control.

208.(b). At a minimum:

208.(b).(1). During the term of the franchise, the company shall maintain within the city a local business office or offices for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, billings disputes and similar matters. The office must be reachable by a local, toll-free telephone call, and the company shall provide the city with the name, address and telephone number of a person who will act as the company's agent to receive complaints regarding quality of service, equipment malfunctions, billings and similar matters.

208.(b).(2). The local office shall be open to receive inquiries or complaints from subscribers during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal holidays.

208.(b).(3). The company shall provide the means to accept complaint calls twenty-four (24) hours a day, seven (7) days a week. Any service complaints from subscribers shall be investigated and acted upon within twenty-four (24) hours. Any service complaint shall be resolved within three (3) calendar days.

208.(b).(4). Upon notification by a subscriber and verification by the company, the company shall credit a subscriber's account on a pro-rata basis for loss of service exceeding four (4) hours within a twenty-four-hour period, or for loss of service that exceeds forty-eight (48) hours in any thirty-day period. The subscriber will be credited for one (1) day of lost service for every four (4) hours the subscriber's service is out. Provided, however, that until March 1, 2001, or the date the upgrade required by Article III is completed, whichever is earlier, subscribers will only be credited for one (1) day of lost service related to the upgrade if there is a twelve-hour loss of service measured over a forty-eight-hour period, or if total outages over any thirty-day period exceed forty-eight (48) hours. Provided further, however, that this exception only applies if the company develops a reasonable cutover plan designed to minimize disruption to subscribers during the upgrade.

208.(b).(5). The company shall keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said complaint and the time and date thereof. This log shall be made available for periodic inspection by the city.

208.(b).(6). As subscribers are connected or reconnected to the system, the company shall, by appropriate means, such as a card or brochure, furnish (i) information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed; and (ii) information concerning the city office responsible for administration of the franchise, including at least the name of the office, the address and main telephone number of the office.

G.  Performance monitoring:  A number of franchises include provisions for the periodic monitoring of the cable operator's performance, covering such areas as "system performance and construction, Franchisee compliance with the Cable Law and this Agreement, customer service and complaint response, Subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions."

Monterey's performance monitoring requirement:

22. PERFORMANCE MONITORING

22.1 Triennial Review

A. During the years which commence on the third and/or sixth anniversaries of the effective date of the Franchise, and every third year thereafter If the Franchise is renewed or extended, the City may commence a review of the Grantee's performance under the Franchise. As part of this review, the City may consider: (1) whether the Grantee has complied with its obligations under the Franchise and applicable law; (2) whether customer service standards, technical standards, or bond or security fund requirements are adequate or excessive; and (3) other issues as may be raised by the Grantee, the City, or the public.

B. The City shall conduct at least one public hearing at a lawfully noticed City Council meeting to provide the Grantee and the public the opportunity to comment on the Grantee's performance and other issues considered as part of this review.

22.2 Reopener

A. The City may, at any point after the fifth anniversary of the effective date of this Franchise, commence a review to determine whether Grantee has satisfied its obligation to respond to community needs and interest by incorporating technological advances into its system through upgrades and rebuilds. Both the City and the Grantee agree to make a full and good faith effort to participate in the process in a manner which accomplishes this end.

B. The City shall conduct at least one public hearing at a lawfully noticed City Council meeting to provide the public the opportunity to comment on the issues which are to be considered in this franchise reopener process.

C. The City may require the Grantee to submit a proposal describing its plans including a timetable and costs, to incorporate technological advances into its system through upgrades and rebuilds. The City may set a deadline for submission of the proposal, which deadline shall provide the Grantee no fewer than sixty (60) days to prepare the proposal from the date a written request for the proposal is submitted to the Grantee.

D. Following receipt and analysis of any proposal, the City and the Grantee shall negotiate in good faith to develop a plan, including a timetable, for an appropriate upgrade or rebuild of the system.

E. At the end of the review and negotiation period, the City shall advise the Grantee of its determination regarding the upgrade/rebuild plan. The City shall award the Grantee a five (5) year extension beyond the initial ten (10) year term of this Franchise Agreement if the upgrade/rebuild plan submitted by the Grantee includes the completion of a system rebuild which is the greater of either a 750 MHz rebuild or a rebuild which brings the cable system functionality to that of systems which are initially constructed or rebuilt in the year this reopener is activated and if the Grantee agrees to complete such an upgrade/rebuild by the end of the seventh (7th) year after the effective date of this Agreement. If the Grantee objects to any requirement for modification, alteration, or expanded capabilities of the system requested by the City, it must do so in writing within fifteen (15) days of the City’s notification. If the Grantee is unwilling to comply with the City’s request, the City may, after a public hearing, shorten the existing franchise term so that the term expires not less than thirty-one (31) months after the decision is made to shorten the franchise term.

G.2.  Palo Alto's franchise includes a requirement for periodic system inspections:

7.6 System Inspections. The City may inspect the Cable System during and after construction. The City shall have the right to inspect the Cable System, Subscriber installations of Cable Services at the Subscribers’ premises, and TCI’s [now Comcast's] equipment used in the maintenance of the Cable System at any time to determine compliance with the Agreement, the Enabling Ordinance, and other applicable Laws. The City shall provide five business days written notice to TCI of such inspection, and the Parties shall jointly identify the specific locations to be inspected. Any testing of the Cable System necessary to accomplish such inspections shall be performed only in the presence of an authorized employee of TCI. TCI shall be notified, in writing, of the determination of any violations found during the course of inspections. If, based on Subscriber complaints or on its own investigation, the City determines that the Cable System may not be operating in compliance with this Agreement or the Enabling Ordinance, it may require TCI to perform additional tests and to prepare a report to the City on the results of those tests, including a report identifying any problem found and steps taken to correct or attempt to correct the problem. TCI must cure violations within thirty days of the date it receives written notice of such violations. Inspection by the City will not relieve TCI of its obligation to maintain the Cable System in compliance with the provisions of the Agreement. This provision is subject to any limitations that may be placed or imposed by federal law on the City’s authority.

7.6.1 Continuing Tests. Upon thirty days prior written notice, the Parties will jointly select test points at various points of the Cable System to perform ongoing tests of the Cable System. The number of these test points will be mutually agreed upon based on what best represents the architecture of the Cable System. TCI shall perform FCC proof-of-performance tests at these locations as often as required by FCC Standards and in conformance with testing required by FCC Standards, and as mutually agreed upon where Cable System user complaints indicate tests are warranted or are required to test all major trunk lines. The City will be permitted to witness the tests. A written report of the test results shall be filed with the City within thirty days of the completion of the test. If a test location fails to meet the FCC Standards, TCI, without the requirement of additional notice or a request from the City, shall take corrective action and retest the test locations, and advise, in writing, the City of the action taken and results achieved, until the FCC proof-of-performance tests are completed in all respects.

G. 3.  Montgomery County's franchise includes the "the integration of future technologies" in its performance evaluations requirement:

6 (u) Periodic Performance Evaluation: The County may schedule periodic public hearings to evaluate the performance of the Franchisee, or to discuss the integration of future technologies, other plans or operations of the Franchisee or any aspect of the Franchisee's Cable System. The Franchisee shall cooperate with the County in any such evaluation.

H.  Reporting and recordkeeping requirements:  In conjunction with performance monitoring and other customer-service requirements, many franchises impose strict reporting and recordkeeping requirements on cable operators.

Palo Alto's reporting requirements:

SECTION 20. REPORTS AND RESPONSES TO QUESTIONS

20.1 TCI [now Comcast] shall provide the following reports on a quarterly basis, in a form acceptable to the City, at the time TCI is scheduled to make its Franchise fee payment:

20.1.1 A report showing the number of service calls completed by type during the prior quarter and the number of service calls compared to the Subscriber base;

20.1.2 A report showing the number of outages as defined in the Enabling Ordinance for the prior quarter, identifying separately: (1) each planned outage, the time it occurred, its duration, and the estimated number of Subscribers affected; and (2) each unplanned outage, the time it occurred, its estimated duration, the area and the estimated number of Subscribers affected;

20.1.3 A Franchise fee report showing Gross Revenues received, by category, in a form acceptable to the City such report shall meet the requirement of Section 10; and

20.1.4 A report stating the Subscriber totals for each member of the Joint Powers for: (1) each basic Cable Service tier; (2) each premium Cable Service; (3) pay-per-view, and; (4) any other programming service, information service, or non-programming service.

20.2 Within ninety days after the close of TCI’s fiscal year, TCI shall submit a written annual report, in a form approved by the City, including, but not limited to, the following information:

20.2.1 A summary of the previous year’s activities in the development of the Cable System within the Service Area, including, but not limited to, additions, deletions, or improvements begun or discontinued during the reporting year, services initiated or discontinued, number of Subscribers (including gains or losses), homes passed, and miles of cable distribution plant in service;

20.2.2 An audited financial statement, including, but not limited to, a statement of TCI’s income and profit and loss statement, a statement of financial condition or any other operating statement that shall be certified by an officer of TCI; and

20.3 Unless otherwise specified and within thirty days upon request, TCI shall provide the following documents to the City:

20.3.1 Within thirty days of the date mailed to shareholders or partners, the annual report or reports, if any, of TCI and any Affiliate which controls, owns, or manages TCI;

20.3.2 Copyright filings regarding the operations of the Cable System;

20.3.3 FCC Forms 325 and 395 (or their successor forms) for the Cable System;

20.3.4 FCC proof of performance and RF signal leakage tests (or their equivalent); and

20.3.5 Such other information relevant to regulation of the Franchise which the City shall reasonably request.

20.4 TCI shall file with the City any notice of deficiency, forfeiture, or other document issued by any California or federal agency which has instituted any investigation or civil or criminal proceeding naming the Cable System, TCI, or any Operator of the Cable System, to the extent the same may affect or bear on the operations of the Cable System.

20.5 TCI shall file, within ten days of filing or receipt, with the City any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by TCI or any Affiliate which owns, controls, or manages or which is owned, controlled or managed by TCI, or any Operator of the Cable System.

H.2.  Palo Alto's record-keeping requirements:

SECTION 21. RECORDS MAINTENANCE

21.1 TCI [now Comcast] shall maintain records described below in a form reasonably acceptable to the City. The records shall be kept at TCI’s local office and shall be available for review and copying by the City during normal business hours. Except for the records referred to in Section 21.1.4, copies of records made and retained by the City pursuant to this Section 21 shall be subject to Section 19.2. Records of any event recorded shall be kept for the time frame indicated below:

21.1.1 Records of outages, indicating date, duration, area and the estimated number of Subscribers affected, type of outage, and cause to be maintained for four years, notwithstanding the provisions of Sections 2.10.080(a) and 2.10.110(a) of the Palo Alto Municipal Code;

21.1.2 Records of service calls for repair and maintenance, indicating the date and time that service was requested, the date and time that service was scheduled (if it was scheduled), the date that service was provided, and (if different) the date the problem was solved to be maintained for four years, notwithstanding the provisions of Sections 2.10.080(a) and 2.10.110(a) of the Palo Alto Municipal Code;

21.1.3 Records of installation/reconnection and requests for service extension, indicating the date of request, the date of acknowledgment, and the date and time that service was extended (to be maintained for four years, notwithstanding the provisions of Sections 2.10.080(a) and 2.10.110(a) of the Palo Alto Municipal Code); and

21.1.4 Maps depicting the current location of all of TCI’s Cable System plant in public rights-of-way, including the location of all trunk and feeder lines.

H.3.  Austin's Customer Service reporting requirements:

EXHIBIT D

CONSUMER SERVICE REPORTING REQUIREMENTS

All reports shall be provided for the Austin franchise area where the capability exists.  Otherwise, system-wide reports are acceptable and shall be deemed to reflect Austin franchise area numbers based on the Allocation Percentage (the number of Franchise Area Subscribers divided by the total system Subscribers).

1. MONTHLY REPORTS

1.1  Monthly reports shall be due within (10) ten business days of the close of each month, unless otherwise agreed upon by  the Office of Cable & Regulatory Affairs and the Grantee.

1.2.01  The Grantee shall provide monthly reports to the Director containing a summary of service calls and other complaints by category which shall be agreed to by the Office of Cable & Regulatory Affairs. (Re: Section 5 in Customer Service Standards)

1.2.02  The summary shall include the following:

A. Number of Subscribers in service tier

B. Report total number of service calls by category that were resolved within:

*  48 hours

*  7 calendar days

*  more than 30 calendar days

2. QUARTERLY REPORTS

2.101   Quarterly reports shall be due within (10) ten business days of the close of each quarter, unless otherwise agreed upon by the Office of Cable & Regulatory Affairs and the Grantee.

2.102   The Grantee shall provide quarterly reports to the Director containing but not limited to the following information:

A. Telephone Report shall contain information relevant to the question of whether its telephone answering system continues to conform to Section 1.3 of Exhibit A.

1. Total number of calls received for the total system

2. Total number of calls abandoned for the total system

3. Total percentage of calls abandoned

4. Average time on hold before abandoned

5. Average speed of calls answered

6. Percentage of calls answered within thirty (30) seconds (FCC standards)

7. Percentage of calls receiving a busy signal

8. A description of significant events impacting the response times

In addition to the above, the Quarterly Report shall include a graph(s) which depicts the first seven (7) items above for a three (3) year period to end with the quarter in question (beginning with 4th quarter of 1995).  FCC standards shall be used as benchmark.

If the Director determines, based on complaints or any other evidence, that the Grantee's telephone service does not meet the standards set forth in Consumer Service Standards, or any variations in those standards previously agreed to by the Director, then the Director has the authority to order the Grantee to take appropriate action to meet such standards.  Failure of the Director to issue such order, however, shall not constitute a waiver of the City's rights with respect to any failure by the Grantee to comply with its obligations pursuant to this Exhibit or this Agreement.   

B. Number of free standard installations or number of $20 credits that were issued for failure to arrive for installations or service calls by appointment within four-hour scheduled timeframe   

C. Number of $10.00 penalty payments given to subscribers for failure to refund outstanding credits greater than $3.00 within 45 days of the date Service is ended   

D. Significant Service Interruptions report which shall track information on a monthly basis to include:

1. Total number of significant service interruptions

2. Time of the significant service interruptions

3. Total hours that the system is out of-service as related to planned maintenance or channel line-up changes performed by Grantee

4. Submit reports in graphs as well for comparative analysis

E. Subscriber churn report for total system. The City may request to review at Grantee's office and shall maintain confidentiality of this information.    

F. Updated construction schedule for the cable system until the completion of the upgrade          

G. INet outage report of the major causes of outages similar to format as the Significant Service Interruptions report, and a one-page summary of the major causes of outages    

H. INet upgrade construction schedule until the completion of the upgrade

I. Statement of costs including equipment, maintenance and upgrade related to the INet          

J. Grantee shall provide results of any technical testing on the system during the quarter

3. ANNUAL REPORTS

3.1  Annual Reports shall include but not be limited to the following:

A. A list of free cable television service connections pursuant to  Section 5 of franchise

B. A cumulative summary of the information submitted to the City in the corresponding quarterly reports.

C. Affirmative action

H. 4.  Montgomery County's report and recordkeeping requirement:

11. REPORTS AND RECORDS.

(a) Open Books and Records.

(1) The County shall have the right, upon reasonable notice, to inspect and copy at any time during normal business hours at the County Cable System office or at such location as the County may designate, all books, receipts, maps, plans, financial statements, contracts, service complaint logs, performance test results, records of requests for service, computer records, codes, programs, and disks or other storage media and other like material which the County deems appropriate in order to monitor compliance with the terms of the Cable Law, this Agreement, or applicable law. This includes not only the books and records of the Franchisee, but any books and records the County deems relevant held by an Affiliate, a cable operator of the Cable System, or any person holding any form of management contract for the Cable System. With respect to books and records held by contractors and subcontractors other than entities described in the preceding sentence, the Franchisee shall cooperate with the County and exercise Franchisee's best efforts to obtain access to the books and records. The Franchisee is responsible for collecting the information and producing it at the location specified above.

(2) The Franchisee shall maintain financial records that allow analysis and review of its operations in the Franchise Area.

(3) Access to the Franchisee's records shall not be denied by the Franchisee on the basis that said records contain "proprietary" information. Refusal to provide information required herein to the County shall be grounds for revocation. All such information received by the County shall remain confidential insofar as permitted by the Maryland Public Information Act and other applicable state and federal law.

(4) The Franchisee shall maintain a file of records open to public inspection in accordance with applicable FCC rules and regulations.

…

(c) Annual Report. Unless this requirement is waived in whole or in part by the County, no later than 90 days after the end of Franchisee's fiscal year, the Franchisee shall submit a written report to the County, in a form directed by the County, which shall include:

(1) a summary of the previous year's activities in development of the Cable System, including but not limited to descriptions of services begun or dropped, the number of subscribers gained or lost for each category of service, the number of pay units sold, the number of subscribers using converters, the amount collected annually from Users of the System, and the character and extent of the services rendered to such Users, including Leased Access Channel Users;

(2) a summary of complaints, identifying both the number and nature of the complaints received and an explanation of their dispositions, as such records are kept by the Franchisee. Where complaints involve recurrent System problems, the nature of each problem and the corrective measures taken shall be identified.

(3) A report showing the number of service calls received by type during the prior quarter, and the percentage of service calls compared to the Subscriber base by type of complaint.

(4) A report showing the number of outages and service degradations for the prior quarter, and identifying separately each planned outage, the time it occurred, its duration, and the estimated area and number of Subscribers affected; each unplanned outage or service degradation, the time it occurred, its estimated duration and the estimated area and the number of Subscribers affected; and the total hours of outages and service degradations as a percentage of total hours of Cable System operation.

(5) A copy of the Franchisee's rules and regulations applicable to subscribers of the cable system;

(6) An annual statement of Gross Revenues derived from the operation of the Cable System, certified by the Franchisee's Vice President of Accounting or an independent certified public accountant;

(7) No later than 120 days after the end of its fiscal year, the Franchisee shall provide an annual financial report for the previous calendar year, certified by the Franchisee's Vice President of Accounting or an independent certified public accountant, including year-end balance sheet; income statement showing Subscriber revenue from each category of service and every source of non-Subscriber revenue, line item operating expenses, depreciation expense, interest expense, and taxes paid; statement of sources and applications of funds; capital expenditures; and depreciation schedule;

(8) An annual list of officers and members of the Board of Directors or similar controlling body of the Franchisee and any Affiliates;

(9) An organizational chart showing all corporations or partnerships with more than a five (5) percent ownership interest in the Franchisee, and the nature of that ownership interest (limited partner, general partner, preferred shareholder, etc.); and showing the same information for each corporation or partnership that holds such an interest in the corporations or partnerships so identified and so on until the ultimate corporate and partnership interests are identified;

(10) An annual report and SEC 10(k) filing for each entity identified in subsection (9) of this Section that generates such documents;

(11) Unless previously provided, a detailed copy of updated maps depicting the location of all cable plant, showing areas served and locations of all trunk lines and feeder lines in the County, and including changes in all such items for the period covered by the report;

(12) a full schedule of all Subscriber and other user rates, fees and charges;

(13) the Franchisee's policies regarding A/B switches;

(14) the Franchisee's policies regarding Subscriber privacy; and

(15) a summary of programs and statistical results which quantify Franchisee's implementation of nondiscrimination, equal opportunity, and minority business policies as required by the County.

…

(f) Records Required.

(1) The Franchisee shall at all times maintain:

(A) Records of all complaints received. The term "complaints" as used herein and throughout this Agreement refers to complaints about any aspect of the Cable System or the Franchisee's operations, including, without limitation, complaints about employee courtesy. Complaints recorded may not be limited to complaints requiring an employee service call.

(B) A full and complete set of plans, records, and "as built" maps showing the exact location of all System equipment installed or in use in the County, exclusive of Subscriber service drops.

(C) Records of outages, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause.

(D) Records of service calls for repair and maintenance indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.

(E) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

I.  Franchise violations:  As a last resort (and as a means of adding leverage to the local franchise authority's relationship with the system operator) provisions for addressing franchise violations are a standard part of franchise agreements.

Montgomery County's remedies for franchise violations:

14 (f) Remedies.

(1) If the Franchisee violates any provision of the law or this Franchise Agreement, the County may have one or more of the following actions:

(A) impose liquidated damages in the amount, whether per day, incident, or other measure of violation, as provided in the franchise agreement. Payment of liquidated damages by the Franchisee will not relieve the Franchisee of its obligation to meet the Franchise requirements;

(B) reduce the duration of the Franchisee on any basis the County determines is reasonable and affords the Franchisee reasonable due process;

(C) require the Franchisee to pay its subscribers or classes of subscribers in an amount and on a basis the County determines is necessary to cure the breach or default, or equitably compensate for the violation; or

(D) revoke the Franchise.

(2) In determining which remedy or remedies are appropriate under subsection (1), the County must consider the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and any other matters the County determines are appropriate.

(3) In addition to or instead of these remedies, the County may seek legal or equitable relief from any court of competent jurisdiction.

(4) Before initiating a remedy under this section other than revocation of the Franchise, the County must give the Franchisee written notice of the violations claimed and at least 10 working days to correct the violations.

(g) Liquidated Damages: Because the Franchisee's failure to comply with provisions of the Franchise and this Franchise Agreement will result in injury to the County, and because it will be difficult to estimate the extent of such injury, the County and the Franchisee agree to the following liquidated damages for the following violations of the Franchise and of this Agreement, which represent both parties' best estimate of the damages resulting from the specified violation. To maintain that estimate, the parties agree that the liquidated damage amounts are in 1998 dollars and shall be increased each year by the CPI. The County may draw on the Security Fund to recover any liquidated damages.

(1) For failure to submit any required plans indicating expected dates of installation of various parts of the System: $400/day for each day the violation continues;

(2) For failure to substantially complete the System Rebuild, including the timeline of completion, in accordance with this Agreement: $2,000/day for each day the violation continues;

(4) For a Transfer without approval: $2,000/day for each day the violation continues;

(5) For failure to make PEG capacity available; failure to comply with the Institutional Network provisions of the Franchise; failure to construct required links to PEG facilities; or failure to make payments to support PEG or the I-Net under this Agreement: $1,000/day for each day the violation continues, in addition to any monetary payment due under this Agreement or the Cable Law;

(6) For failure to supply information, reports, or filings lawfully required under the Franchise Agreement or applicable law or by the County: $200/day for each day the violation continues;

(7) For violation of customer service standards: $200 per violation;

(8) For failure, unless such failure is beyond the Franchisee's control, of the Emergency Alert System to perform in the event of a public emergency or vital information situation: $250 per occurrence;

(9) For failure to render required payment for reimbursement of any Franchise expenses, or liquidated damages: $100 per day, in addition to any monetary payment due under this Agreement or the Cable Law;

(10) For failure to file, obtain or maintain any required Security Fund in a timely fashion: $50 per day;

(11) For failure to restore damaged property: $50 per day, in addition to the cost of the restoration as required elsewhere herein; and

(12) For violation of technical standards established by the FCC: $100 per day.

I.2.  Portland's requirements concerning franchise violations and remedies:

Section 23. FRANCHISE VIOLATIONS AND REMEDIES, EXPIRATION AND RENEWAL

23.1 Remedies for Franchise Violations.

(A) Remedies. In addition to any rights set out elsewhere in this Franchise, or such other rights as it may possess, the Jurisdictions reserve the right at their discretion to apply any of the following remedies, alone or in combination, in the event Grantee violates any material provision of this Franchise. In determining which remedy or remedies are appropriate, the Jurisdictions shall consider the nature of the violation, the Persons burdened by the violation, the nature of the remedy required in order to prevent further violations, and any other matters the Jurisdictions deem appropriate.

(1) Impose reasonable penalties, up to one thousand dollars ($1,000) per day, incident or other measure of violation;

(2) To the extent authorized by law, require Grantee to reduce its rates and charges by such amount or amounts as is reasonable in light of the violation;

(3) To the extent authorized by law, require Grantee to make payments or grant refunds to its Subscribers or Subscriber Classes in such amounts, and on such bases as are reasonable relative to damages sustained by Subscribers, for violations relating to Subscriber service. At Grantee's option, such payments or refunds may be made in the form of a credit against Subscriber service bills. For purposes of this Subsection, "Subscriber Class" means any group of actual or potential Subscribers identified by the Grantee on the basis of specified characteristics for the purpose of providing, marketing or establishing any combination or package of Cable Services, rates or charges, or for the purpose of providing or directing customer services or marketing in any form;

(4) To the extent authorized by law, require Grantee to correct or cure the violation prior to any rate increase becoming effective, or otherwise delay consideration of any rate request until the violation is corrected or cured;

(5) Reduce the duration of the term of this Franchise for the effected Jurisdiction on such basis as is reasonable provided that in no event shall the amount of the term remaining after the reduction be less than three (3) years; or

(6) Revoke this Franchise for the effected Jurisdiction.

(B) Remedies for Delays. In addition to the remedies set forth in Section 23, the Jurisdictions may, at their sole discretion, apply any one or more of the following remedies in connection with material delays in Cable System Upgrade:

(1) Find the Grantee in material violation of this Franchise;

(2) Reduce the duration of the term of this Franchise of the effected Jurisdiction on a month-to-month basis for each month of delay exceeding six (6) months provided that in no event shall the amount of the term remaining after the reduction be less than three (3) years;

(3) Declare a forfeiture of any construction bond required under Section 15.4 for any delay exceeding one (1) year; or

(4) Terminate this Franchise for the effected Jurisdiction for any delay exceeding eighteen (18) months.

(C) In determining which of the foregoing remedies is appropriate, and in the exercise of specific remedies, the Jurisdictions shall consider, among other things, (1) the nature and extent of the violation, (2) whether Grantee has had a history of similar violations, (3) the remedy that can be expected to deter such violations in the future, and (4) the damage suffered by the public and the cost of remedying the violation.

(D) A Jurisdiction also has the right to shorten the term of this Franchise or revoke this Franchise for the effected Jurisdiction in the manner described in Sections 23.1(A)(5) and (6) upon the occurrence of any of the following acts or events:

(1) Grantee is found by a court of competent jurisdiction to have practiced any fraud or deceit upon the Jurisdiction; or

(2) Grantee becomes insolvent or is adjudged to be bankrupt, or otherwise initiates corporate or partnership dissolution; or

(3) Grantee fails to obtain and maintain any permit required by any federal or state regulatory body in order to own and operate the Cable System.

(E) Receivership. In addition to its other rights and remedies as set forth in this Franchise, the Jurisdictions shall have the right to revoke this Franchise one hundred and twenty (120) days after the appointment of a receiver or trustee to take over and conduct the Grantee's business, whether in receivership, reorganization, bankruptcy or other similar action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred and twenty (120) days, or unless:

(1) Within one hundred and twenty (120) days after such appointment, the receiver or trustee shall have fully complied with all provisions of this Franchise and remedied any and all violations or defaults, as approved by the Jurisdictions; and

(2) Within said one hundred and twenty (120) days, such receiver or trustee shall have executed an agreement with the Jurisdictions, duly approved by the Jurisdictions and the court having competent jurisdiction, in which such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise.

(F) In the event that the Jurisdictions make a preliminary determination that the Grantee has violated this Franchise, the Jurisdictions shall commence a contested case proceeding under the rules adopted by the Jurisdictions. The Jurisdictions' final determination, following a contested case proceeding, may be appealed to a Jurisdiction's governing body. The Jurisdiction's governing body shall consider the appeal based on the record established in the contested case proceeding, under rules established by the Jurisdictions.

23.2 Notice and Opportunity to Cure.

(A) The Jurisdictions shall give Grantee thirty (30) days prior written notice of its intent to exercise any of their rights under Section 23.1, identifying the reasons for such action.

(B) If Grantee removes or otherwise cures the asserted violation constituting the stated reason within the thirty (30) day notice period, or if cure is not reasonably possible within the thirty (30) day period and the Grantee initiates good faith efforts satisfactory to the Jurisdictions within the thirty (30) day period to cure the asserted violation constituting the stated reason and the efforts continue in good faith, the Jurisdictions shall not exercise their rights under Section 23.1.

(C) If Grantee fails to remove or otherwise cure the asserted violation constituting the stated reason within the thirty (30) day notice period, or if the Grantee does not undertake and continue efforts satisfactory to the Jurisdictions to remedy the stated reason, then the Jurisdictions may exercise any or all of the remedies available under Section 23.1 or such other rights as the Jurisdictions may possess.

I.3.  Monterey's penalties for any cable operator violations of franchise agreement:

16. REMEDIES -- LIQUIDATED DAMAGES

16.1 Because the Grantee's failure to comply with provisions of this Franchise will result in injury to the City, and because it will be difficult to estimate the extent of such injury, pursuant to Section 22 (Remedies -- Liquidated Damages) of the Enabling Ordinance, the City and the Grantee hereby agree to the following liquidated damages, which represent both parties' best estimate of the damages resulting from the specified injury. Damage amounts may be adjusted throughout term of Franchise by the City by resolution to take into account increases in the Consumer Price Index.

16.2 for failure to complete construction or extend service in accordance with the Franchise: seven hundred fifty dollars ($750) per day for each day the violation continues;

16.3 for failure to comply with material requirements for PEG access use of the cable system: five hundred dollars ($500) per day for each day the violation continues;

16.4 for repeated, willful, or continuing failure to submit reports, maintain records, provide documents or information: two hundred dollars ($200) per day for each day the violation continues; 16.5 for violation of customer service standards: three hundred fifty dollars ($350) per violation per day (for matter of clarification, the liquidated damages that may be assessed under this Section

16.5 are not intended to be computed on a per customer, per violation, per day basis);

16.6 for failure to comply with transfer provisions: five hundred dollars ($500) per day from the date of any unlawful transfer; and

16.7 for all other material violations: five hundred dollars ($500) per day for each day the violation continues.

 

Other Requirements

Other Requirements

         A.  Types of programming to be offered

         B.  Community programming needs

         C.  Research and development

         D.  Universal service

         E.  Equal employment/affirmative action

         F.  Labor policies

         G.  Competition

         H.  Open access

         I.    Local underwriting guidelines

In addition to the major areas outlined above, covering PEG capacity and support, I-Nets, and customer service, there are also a number of other items that are important to a successful franchise.

A.  Types of programming to be offered:  Although the Cable Act does not permit cities to stipulate specific cable programming, they are allowed to specify broad categories of programs and services.

St. Paul's stipulation concerning types of programming to be offered:

105.(b). The company also agrees to provide the following broad categories of services, in addition to providing the channels for PEG use:

105.(b).(1). Cable services responsive to the needs and interests of the community throughout the franchise term, as determined through surveys or studies of St. Paul subscribers;

105.(b).(2). Public affairs and news programming about the City of St. Paul;

105.(b).(3). Public affairs and news programming about the Twin Cities region;

105.(b).(4). A channel or channels of children's programming;

105.(b).(5). A channel or channels of arts and cultural programming;

105.(b).(6). A channel or channels of programming of special interest to minority groups.

A.2.  Portland's franchise also includes a definition of programming categories:

5.3 Broad Programming Categories.

(A) Grantee shall provide or enable the provision of at least the following broad categories of Programming:

(1) Arts, culture and performing arts;

(2) Foreign languages;

(3) Programming addressed to diverse ethnic and minority interests in the Jurisdictions;

(4) National, state and local government affairs; and,

(5) Local Origination Programming concerning local and regional issues, events, and affairs of interest to the Jurisdictions' residents.

(B) Deletion or Reduction of Programming Categories.

(1) Grantee shall not delete or so limit as to effectively delete any broad category of Programming identified in Section 5.3 and within its control without the consent of the Jurisdictions or as otherwise authorized by law.

B.  Community programming needs:  In addition to outlining broad programming categories, cities can also require periodic surveys of community programming needs.  Palo Alto's requirement for such surveys is typical.

Palo Alto's requirement for periodic community programming surveys:

7.12 Ascertainment of Programming.

7.12.1 TCI [now Comcast] shall periodically conduct an ascertainment of the programming needs, interests, and preferences of its Subscribers within the Service Area. TCI shall, if requested, report to the City the results (if any) of its programming ascertainment and any actions taken, or to be taken, by it pursuant thereto.

7.12.2 The City at its sole option may undertake a survey of community views of cable operations in the City, including, but not limited to, programming, response to community needs, and customer service.

7.13 No City Control. During the term of this Agreement, the City may not prohibit TCI from providing any program or class of programs, or otherwise censor communications over the Cable System; except that nothing in this Section shall be read to authorize TCI to engage in communications which are prohibited by applicable Law or to allow TCI to exercise any editorial control over PEG channels except to the extent authorized by federal or California law.

B.2.  Monterey requires ascertainment of programming needs every three years:

7.12 Ascertainment of Programming. At least once every three (3) years during the term of this Franchise Agreement, the Grantee shall conduct an ascertainment of the programming needs, interests, and preferences of the subscribers within its franchise area. The Grantee shall report to the City the results of the Grantee's programming ascertainment.

B.3.  Austin's requirement concerning community-programming needs includes Spanish  language programming, closed captioning, and locally based music:

SECTION 6. COMMUNITY PROGRAMMING NEEDS

6.1. In addition to the service requirements in this Franchise, Grantee agrees to provide programming responsive to the Austin community's needs and interest for Spanish language programming.

6.2. This programming shall consist of at least two (2) Spanish language channels.

6.3. The parties expressly agree that the programming described in paragraphs 6.2 and 6.5 represent broad categories of video programming within the meaning of 47 U.S.C. 544(b) (2) (B).

6.4. Grantee shall retransmit all closed-captioned signals made available by programmers in conjunction with programming in its line-up and which are provided in order to facilitate viewing by handicapped persons. Grantee shall maintain the necessary head-end equipment to make SAP features available to Subscribers. Grantee's obligations under this subsection do not extend to providing customer premises equipment.

6.5. Grantee believes there is significant interest on the part of its customers in locally based music. Grantee intends to make available one full-time channel for the exhibition of programming concerning Austin music. Grantee intends to include in its program offering, a channel dedicated to local music throughout the full term of the Franchise, provided quality programming is available and customer interest continues.

6.5.1. Grantee does not intend to undertake any obligation to produce such programming itself, but rather the administration of this channel shall be performed by the City or its designee. Nothing herein shall prevent Grantee, the City, or the channel's programmer from selling commercial advertising time on this channel as agreed by the parties.

6.5.2. During the period that Grantee provides such channel, the maximum number of PEG Access Channels shall be reduced by one.

6.5.3. Notwithstanding any other provision in this Franchise, the Grantee agrees that the programming for this Channel may be transmitted over the Institutional Network to enable distribution to Cable System Subscribers, and all equipment provided for PEG Access may be used for the production of programming pursuant to Subsection 6.5.

C.  Research and development:

St. Paul's franchise includes an R&D requirement that covers both service and system capabilities:

Section 307. Research and development.

The company shall, on an ongoing basis, conduct research and development with regard to improvement of existing services, provision of new services and enhancement of system capabilities.

D. Universal service:  In an effort to ensure equitable service throughout the franchise area, many cities, including Portland, have adopted universal service requirements.

Portland's "universal service" requirement:

10.1 Universal Service. Grantee shall provide Cable Service to all Subscribers in the Franchise Area under non-discriminatory rates and reasonable terms and conditions. Grantee shall not arbitrarily refuse to provide Cable Services to any Person within the Franchise Area.

D.2.  Montgomery County's franchise includes a similar anti-redlining provision:

6 (i) (2) The Franchisee's construction plan shall insure that service is extended to low income areas at least as quickly as it is extended to higher income areas.

E.  Equal employment/affirmative action:

St. Paul's franchise includes an equal employment/affirmative action requirement:

Section 203. Equal employment opportunity and affirmative action.

203.(a). The company shall not deny service, deny access or otherwise discriminate against subscribers, channel users or other persons on the basis of race, color, creed, religion, ethnic origin, age, sex, sexual or affectional orientation, familial status, marital status, status with regard to public assistance, or handicap. The company shall comply with all requirements of federal, state and local laws and regulations relating to nondiscrimination.

203.(b). The company shall comply with or exceed all federal, state and local laws and regulations relating to equal employment opportunity.

203.(c). The company also agrees to be bound by all the provisions of Chapter 183 of the St. Paul Legislative Code, including those provisions that apply to persons contracting with the city.

203.(d). The city has a goal of assisting economically disadvantaged businesses to participate in public contracts through its Targeted Vendor Development Program, which is addressed in Chapter 81 of the Saint Paul Administrative Code. The city requires the company to make a good faith effort to purchase goods, supplies, and services from targeted vendors certified with the city during this contract period.

F.  Labor policies: 

St. Paul's franchise stipulates fair labor policies:

Section 204. Labor policies.

204.(a). The wages and benefits paid to the occupational groups utilized by the company or its contractors or subcontractors in the construction, operation, or maintenance of the cable system shall not be less than the wages or fringe benefits paid to comparable positions in the classified civil service system.

204.(b). The company shall recognize the right of its employees to bargain collectively through representatives of their own choosing in accordance with applicable laws and shall deal with representatives duly elected by a majority of its employees for the purpose of collective bargaining with respect to compensation, hours of employment or any other terms, conditions or privileges of employment.

204.(c). The company shall ensure that at least seventeen (17) percent of its work force is located within the City of St. Paul.

G.  Competition:  Even though most cable companies enjoy monopoly status at the local level, a number of franchise agreements include provisions designed to encourage competition.

Monterey's franchise includes a competition provision:

SECTION 4. NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED

4.1 This Franchise Agreement and the right it grants to use and occupy the public right of way is not exclusive and does not explicitly or implicitly preclude the issuance of other franchises to operate cable systems or other communications systems within the City, affect the City's right to authorize use of the public right of way by other persons to operate cable systems or other communications systems or for other purposes as it determines appropriate, or affect the City's right to itself to construct, operate or maintain a cable system or other communications system, with or without a Franchise.  

G.2.  Montgomery County's provision encouraging competition:

2(m) Effect of Competition:

(1) The County and the Participating Municipalities desire competition in cable services in Montgomery County and believes competition will benefit the residents of the County and the Participating Municipalities. Further, the County and the Participating Municipalities believe that competition can develop without substantial injury to Franchisee or Franchisee's ability to perform on its promises in this Agreement. The Franchisee has entered this Agreement with a full understanding that the County and the Participating Municipalities intends to encourage the development of competition.

(2) If the County Executive requests, the County, for itself and the Participating Municipalities, may require the Franchisee to increase its Comparable Obligations to the level of the Support Obligations of a Video Competitor if the total Support Obligations of the Video Competitor (excluding franchise fees or comparable fees or taxes) pursuant to any franchise or comparable agreement with the County are greater than the total Comparable Obligations of the Franchisee (excluding franchise fees) under this Franchise and the Settlement Agreement.

H.  Open access:  Although the status of open access regulations (allowing consumer choice of ISP) is still under review (see the Brand X case currently before the Supreme Court), some cites have incorporated open access provisions in their franchise agreements.

Palo Alto's Open Access requirement:

SECTION 24. OPEN ACCESS

24.1 TCI [now Comcast] shall comply with all applicable and lawful requirements with respect to nondiscriminatory access to its Cable Modem platform(s) for all Internet Service Providers.

24.2 In deploying and offering any Internet access service over the Cable System, neither TCI nor any of its Affiliates shall deny access to, or phase construction or deployment of, such Internet access service to any group of Subscribers or potential Subscribers because of the income, race, color, national origin, religion, gender, sexual orientation, age or disability of the Subscribers or potential Subscribers of the local area in which such group resides.

24.3 Nothing in this Agreement shall be construed as a waiver of any right the City may have under applicable Law to regulate cable modem service offered by cable operators, or of any right TCI may have to challenge any such regulation as contrary to applicable Law.

I.  Local underwriting guidelines:  Because PEG programming is supposed to be noncommercial in nature, limits on advertising and promotion must be enforced. Austin's local underwriting guidelines might serve as a guide in this regard:

EXHIBIT E

LOCAL UNDERWRITING GUIDELINES

THE PURPOSE OF THE UNDERWRITING GUIDELINES IS TO PROMOTE OR TO CLEARLY IDENTIFY THE UNDERWRITER, NOT TO PROMOTE OR SELL ITS PRODUCT OR SERVICE.

Video

The following video effects are permissible:

1. Standard or existing corporate logotypes, logograms or slogans, both still or animated, which identify but does not promote. 

2. One corporate mascot (such as the Exxon tiger) or other symbolic figure developed as a corporate (rather than product) symbol, accompanied by the company's name.          

3. One specific product line or brand name, after the funder's name/logo. Symbolic depiction of up to three generic product lines, services or target markets, in addition to the one specific product. Total product depiction must be limited to no more than 50% of the entire credit.  

4. Business exteriors, particularly when they are best representation of a funder's product/services (e.g., bank or hospital).   

5. Location information--street address, or general reference to area served. Phone numbers are not permitted at any time.

The following practices tend to convey a more "commercial" impression and may not be used:

1. Products in use or operation for the purpose of demonstrating their performance characteristics.          

2. Packaged goods (such as food products) shown outside the container or package, or in a prepared state.

3. Depiction of tobacco products, distilled spirits, and firearms.

4. Official spokesperson, company officials, directors or actors posing as "generic" employees.

Audio

The following audio techniques are acceptable:

1. Brief value: neutral descriptions of product, service or target markets.

2. Location information: street address or general reference to area served. Phone numbers are not permitted.

3. Music and sound effects are permitted. However, lyrics sung to music may not be used.

The following audio techniques are disallowed:

1. Comparative Claims:  Donor acknowledgments that contain descriptive language comparing underwriter's products or services with those of competitors are not permitted. Avoid words such as: Best, Better, More, Superior.  

Examples of acknowledgments that contain these comparative terms are:

"Serving more cities than any other airlines"

"With more assets than any other bank in town"

"Featuring the best products in town"

2. Qualitative Claims: Donor acknowledgments that contain qualitative descriptions of the underwriter's product or service are not permitted. Qualitative descriptions include words that describe the features, benefits, advantages or other qualities offered by underwriter's product or service. Avoid words such as Fine, Excellent, Tasty, or Leading.  

Examples of acknowledgments than contain these qualitative claims:

"A leading supplier of automobiles"

"With 20 convenient locations"

3. Solicitations:  Announcements that contain a "Call to Action" are not permitted. Most "Calls to Action" contain imperative language. A statement addressed directly the viewer that tells the viewer to take action. 

Examples of acknowledgments that contain "Call to Action" statements:

"Ask about our IRA" or "Call us at 555-0000"

4. Pricing Information: Announcements containing price information are not permitted. This includes interest rate information or other indications of savings or value associated with the product or service.

Examples of pricing information are:

"Office products at discount prices"

"Making computer power affordable at every desk"

"8.0% interest rate now available"

5. Inducements to buy, sell, rent or lease: Announcements containing any inducements to buy, sell, rent, or lease are not permitted. 

Examples:

"Six months of free service"

"Special gift for first fifty customers"

"Now offering free checking"

Other:  All underwriting credits will be 10 seconds in length unless underwriter is an exclusive underwriter.

Basic Definitions

Basic Definitions

         A.  Portland's list of basic definitions

         B.  St. Paul's definitions

         C.  Austin's definition of "gross revenues"

         D.  Austin's definition of "rights of way"

Cable franchise agreements, like much telecommunications policy, are rife with complex technical terms and arcane legal expressions.  As part of its franchise negotiations efforts, the City of Oakland has posted a glossary of technical terms, "Commonly Used Telecommunications Terms (with emphasis on Cable Television)," which is useful in deciphering the language of franchises.  And those documents themselves, as the following excerpts suggest, often include basic definitions that help clarify the debates that surround the deployment and management of advanced cable systems.

A.  Portland's franchise offers a number of useful basic definitions:

Section 3. DEFINITIONS

…

(B) Definitions. For the purpose of this Franchise, and all Exhibits attached hereto, the following terms, phrases, and their derivations shall have the meanings given below unless the context indicates otherwise. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular include the plural number. The word "shall" is always mandatory and not merely directory.

3.2 "Access" means the availability for use of the Cable System by various agencies, institutions, organizations, groups and individuals in the community to acquire, create, and distribute Non-Commercial Programming not under the Grantee's editorial control, including, but not limited to:

(A) "Public Access" means Access where organizations, groups or individual members of the general public, on a nondiscriminatory basis, are the primary or designated Programmers or users having editorial control over their Programming;

(B) "Educational Access" means Access where schools are the primary or designated Programmers or users having editorial control over their Programming;

(C) "Government Access" means Access where governmental institutions are the primary or designated Programmers or users having editorial control over their Programming; and

(D) "PEG Access" means Public Access, Educational Access, and Government Access, collectively.

3.3 "Access Channel" means any Channel, or portion thereof, designated for Access purposes or otherwise made available to facilitate or transmit PEG Access Programming.

3.4 "Access Corporation" means such non-profit, public corporations as are designated by the Jurisdictions to provide Access in the Franchise Area, and whose duties may include the management of certain Access Facilities and Resources.

3.5 "Access Facilities" means the Channels, services, facilities, equipment, and/or technical components used or useable by and for PEG Access.

3.6 "Access Resources" means all operating support and other financial means by which PEG Access may be funded.

3.9 "Basic Service Tier " is the level of Programming service which includes, at a minimum, all Broadcast Channels, all PEG Access Channels required in this Franchise, and any additional Programming added by the Grantee.

3.15 "Capacity" means the capability of the Cable System to carry Signals. At the time of the effective date of this Franchise, Capacity may be described in terms of portions of the total radio frequency bandwidth by specifying a number of MHZ, but this is subject to changes in technology.

3.19 "Closed Channel" means a Channel intended for restricted use, whether on the Institutional Network or the Residential Network, whose contents may only be viewed using special trapping, decoding, an authorized descrambler, or other means of selectively descrambling the Signals. Closed Channel uses may include, without limitation, pay television services or tier services on the Residential Network, and videoconferencing or other closed-circuit uses on the Institutional Network.

3.24 "Ed-Net" means Oregon's educational institutional network, as set forth in ORS 354.505 through ORS 354.550 (1995).

3.35 "High Capacity I-Net Location" are Institutional Subscriber locations that require large amounts of Upstream and Downstream Capacity sufficient for multiple Signal transmissions, and to achieve this Capacity, would typically utilize a separate Fiber and/ or coaxial cable from Fiber Nodes in addition to the normal Residential Network coaxial cable.

3.37 "Interconnect" or "Interconnection" means the provision by Grantee of technical, engineering, physical, financial, and all other necessary components to provide and adequately maintain a physical linking of Grantee's Cable System with any other designated cable system or other separate communications network so that Cable Services of technically adequate quality may be sent to and received from such other systems.

3.38 "Institutional Network" or "I-Net" means Capacity on the Cable System which provides for one-way and bi-directional communication services to and among Institutional Subscribers for use in conducting their business. The network includes all equipment required to make the Capacity available including but not limited to Fiber, coaxial cable, switching, patching, electronic transmitting, receiving, and Signal conversion necessary for effective use of the I-Net.

3.39 "Institutional Services" or "I-Net Services" means one-way and bi-directional communications services provided over the Institutional Network to facilitate the operations of PEG Institutions.

3.40 "Institutional Subscriber" means a PEG Institution receiving Institutional Services.

3.45 "Low Capacity I-Net Location" means a location designated to receive Institutional Services requiring less Capacity for sending or receiving video, voice or data Signals than may be required for High Capacity I-Net Locations, and requiring no special installation of cable from Fiber Nodes for the use of such Institutional Services other than normal Residential Network coaxial cable.

3.46 "Narrowcasting" means the ability of the Cable System to cablecast Signals to specific geographic areas.

3.47 "Non-Commercial" means use of the Cable System by any public, tax-exempt organization or by any other user for a purpose that is not intended to generate income for the user which may be subject to federal, state, or local income taxes.

3.50 "PEG Institution" means any public educational institution, including primary and secondary schools, community colleges, colleges, universities and extension centers, and all similarly situated private and parochial educational institutions which have received the appropriate accreditation from the State of Oregon and, where required, from other authorized accrediting agencies; any agency of government, excluding state or federal governments; public libraries; Ed-Net; and Designated Access Providers.

B.  St. Paul's franchise also includes some useful definitions:

Section 101. Definitions.

For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. References to officials, departments, agencies or other entities, whether defined or not, shall be read to refer to the same, or their authorized successors. References to statutory provisions shall refer to those provisions as they may be renumbered from time to time. References to applicable law or to any part of the Legislative Code of the City of St. Paul refer to the same as they may be amended from time to time during the term of the franchise. Words not defined shall be defined as in Chapter 430 of the Legislative Code of the City of St. Paul; if not defined there, as defined in 47 U.S.C. § 521 et. seq.; if not defined there, the words shall be given their common and ordinary meaning.

101.(j). Economically disadvantaged shall mean those persons who receive assistance under any of the following programs: the Minnesota Telephone Assistance Plan ("TAP"); Food Stamps; Minnesota Family Investment Program; General Assistance.

101.(q). Nonprofit institution means (1) a person, other than a religious organization, which qualifies for federal tax exempt status; and (2) any governmental body, agency, department, or commission; accredited school; library; hospital; or any legal entity contracting with the city to provide social services; whether or not such entity falls within the scope of subdivision (1).

101.(r). Person includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, including the city.

101.(s). Person with disabilities means any living person that: (1) receives assistance under the Social Security disability insurance program, or the Supplemental Security Income (SSI) disability program; or (2) has been issued an identifying certificate by the State of Minnesota for persons with physical disabilities; or (3) receives any vocational rehabilitation services pursuant to Section 268A.01 of the Minnesota State Statutes.

101.(v). Senior citizen means any living person over sixty-five (65).

C.  Austin's definition of "Gross Revenue" includes "Information Services," although the FCC has ruled that cable modem revenues are exempt from local franchise fees:

1.18. "Gross Revenue" means any and all consideration of any kind or nature, including without limitation, cash, credits, property and in-kind contributions (services or goods) received by Grantee or Affiliates which is derived from (or by way of clarification and not expansion, attributable to or arising from) the operation of Grantee's Cable System, provision of Information Services, and any lease or license of Grantee's Transmission Network….

1.19. "Information Service" means, to the extent not a Cable Service, the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

D.  Austin's franchise includes a full definition of "rights of way":

1.25. "Public Rights-of-Way" means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement or similar property in which the City holds any property interest or exercises any rights of management or control and which, consistent with the purposes for which it was acquired or dedicated, may be used for the installation and maintenance of a Cable System and/or Transmission Network. No reference in this Franchise to a "Public Right-of-Way" shall be deemed to be a representation or guarantee by the City that its interests or other rights in such property are sufficient to permit its use for the installation and maintenance of a Cable System and/or Transmission Network, and the Grantee shall be deemed to gain only those rights which the City has the right and power to give.