HomeMy WebLinkAbout2021.10.30 - 2026.10.29 - Verizon Cable Televison Renewal License - fully executed (01.04.2022) CABLE TELEVISION
RENEWAL LICENSE
GRANTED TO
VERIZON NEW ENGLAND INC.
THE SELECT BOARD
TOWN OF LEXINGTON,
MASSACHUSETTS
JANUARY 24, 2022
TABLE OF CONTENTS
ARTICLE PAGE
1. DEFINITIONS................................................................................................................... 1
2. GRANT OF RENEWAL LICENSE AUTHORITY.........................................................7
3. PROVISION OF CABLE SERVICE.............................................................................. 11
4. SYSTEM FACILITIES ................................................................................................... 12
5. PEG ACCESS SERVICES AND SUPPORT.................................................................. 13
6. LICENSE FEES............................................................................................................... 17
7. CUSTOMER SERVICE.................................................................................................. 18
8. REPORTS AND RECORDS...........................................................................................25
9. INSURANCE AND INDEMNIFICATION....................................................................27
10. RENEWAL OF LICENSE..............................................................................................28
It. ENFORCEMENT AND TERMINATION OF RENEWAL LICENSE .........................29
12. MISCELLANEOUS PROVISIONS................................................................................31
EXHIBITS
EXHIBIT A-PUBLIC BUILDINGS TO BE PROVIDED CABLE SERVICE
EXHIBIT B --OPERATING FUNDING GROSS REVENUES REPORTING FORM
EXHIBIT C-FORM OF PERFORMANCE BOND
THIS CABLE TELEVISION RENEWAL LICENSE (this "Renewal License") is entered
into by and between the Select Board of the Town of Lexington (the "Town"), as Issuing
Authority for the grant of cable television license(s) pursuant to M.G.L. Chapter 166A, and
Verizon New England, Inc., a corporation duly organized under the applicable laws of the State
of New York(the"Licensee").
WHEREAS, the Issuing Authority is a"franchising authority"in accordance with Section
602(l 0) of the Communications Act, and is authorized to grant one or more nonexclusive cable
licenses pursuant to M.G.L. Chapter 166A;
WHEREAS, the Issuing Authority granted to the Licensee, effective as of October 30,
2006, a nonexclusive Cable Television Final License to install, maintain, extend, and operate a
Cable System in the Town for a term of fifteen(15) years (the"Final License");
WHEREAS, the Licensee has operated a Cable System in accordance with the Final
License as of the effective date on its existing Telecommunications Facilities consisting of a
Fiber to the Premises Telecommunications Network ("FTTP Network") in the Town which also
transmits Non-Cable Services pursuant to authority granted by M.G.L. c. 166 and Title II, which
Non-Cable Services are not subject to the Massachusetts Cable Law or Title VI;
WHEREAS, pursuant to and in accordance with applicable federal and State law, the
Issuing Authority undertook a process to determine whether it should renew the Final License
and the terms for such a renewal;
WHEREAS, the Issuing Authority has examined the past performance of the Licensee
and has determined that the Licensee is and has been in material compliance with the Final
License and applicable law; and
WHEREAS, following good faith negotiations between the parties, the Issuing Authority
and the Licensee have agreed on the terms for a renewal license under which the Licensee will
continue to operate its Cable System in the Town;
NOW, THEREFORE, in consideration of the Issuing Authority's grant of a Renewal
License to the Licensee, the Licensee's commitment to continue providing Cable Service to
residents of the Town pursuant to the terms and conditions set forth herein, and for other good
and valuable consideration,the receipt and the adequacy of which are hereby acknowledged,
THE SIGNATORIES HERETO DO HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
Except as otherwise provided herein, the definitions and word usages set forth in
the Communications Act are incorporated herein and shall apply in this Renewal License. For
the purpose of this Renewal License, the following words, terms, phrases and their derivations
shall have the meanings given herein. When not inconsistent with the context, the masculine
pronoun includes the feminine pronoun, words used in the present tense include the future tense,
words in the plural number include the singular number and words in the singular number
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include the plural number. The word shall is always mandatory and not merely directory. In
addition, the following definitions shall apply:
1.1. Access Channel: A video Channel which the Licensee shall make
available to the Town of Lexington and/or its designee(s) without charge for non-commercial
public, educational, or governmental use for the transmission of non-commercial Video
Programming as directed by the Town and in accordance with the terms of this Renewal License.
1.2. Access Corporation: The entity, designated by the Issuing Authority of
the Town of Lexington, that is responsible for operating and managing the use of PEG Access
Channels, facilities, funding and programming in the Town.
1.3. 4ffiliate: When used in relation to any Person, another Person who owns
or controls, is owned or controlled by, or is under common ownership or control with, such
Person.
1.4. Basic Service Tier: Any service tier which includes the retransmission of
local television broadcast signals.
1.5. Cable Division: The Cable Television Division of the Massachusetts
Department of Telecommunications and Cable.
1.6. Cable Service or Cable Services: Shall be defined herein as it is defined
under Section 602(6) of the Communications Act, 47 U.S.C. § 522(6), meaning the one-way
transmission to Subscribers of Video Programming or other programming service, and
Subscriber interaction, if any, which is required for the selection or use of such Video
Programming or other programming service.
1.7. Cable System or System: Shall be defined herein as it is defined under
Section 602(7) of the Communications Act, 47 U.S.C. § 522(7), meaning a facility, consisting of
a set of closed transmission paths and associated signal generation,reception,and control equipment
that is designed to provide cable service which includes video programming and which is provided
to multiple Subscribers within the Town, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (B) a
facility that serves subscribers without using any public right-of-way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of Title II of the Communications
Act, except that such facility shall be considered a cable system (other than for purposes of
section 621(c) of the Communications Act) to the extent such facility is used in the transmission
of video programming directly to subscribers unless the extent of such use is solely to provide
interactive on-demand services; (D) an open video system that complies with Section 653 of the
Communications Act; or (E) any facilities of any electric utility used solely for operating its
electric utility systems.
1.8. Channel: Shall be defined herein as it is defined under Section 602(4) of
the Communications Act, 47 U.S.C. § 522(4).
1.9. CMR: The Code of Massachusetts Regulations.
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1.10. Commercial Subscriber: A commercial, non-residential Subscriber.
1.11. Communications Act: The Communications Act of 1934, as amended.
1.12. Complaint: Shall be defined herein as it is defined by the Cable
Division's Order Adopting Revised Form 500 (June 11, 1999), meaning any written or verbal
contact with the Licensee in connection with Cable Service in which a Person expresses
dissatisfaction with an act, omission, product or service that is (1) within the Licensee's control,
and(2)requires a corrective measure on the part of the Licensee.
1.13. Converter: A device capable of unscrambling coded video signals
distributed over the Cable System.
1.14. Educational Access Channel: An Access Channel available for the non-
commercial use of local educational institutions in the Town, as well as the Access Corporation.
1.15. Effective Date: The Effective Date of this Renewal License, being
October 30, 2021.
1.16. FCC: The United States Federal Communications Commission, or
successor governmental entity thereto.
1.17. Force Majeure: Acts of God; acts of public enemies; orders of any kind of
the government of the United States of America or of the State or any of their departments,
agencies, political subdivisions, or officials, or any civil or military authority; insurrections; riots;
epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods;
washouts; droughts; civil disturbances; explosions; pandemics; strikes, labor disturbances or
lockouts; unavailability of essential equipment, services and/or materials and/or other matters
beyond the control of the Issuing Authority, the Town or the Licensee, and unreasonable work
delays.
1.18. FTTP Network: The network constructed and operated by the Licensee
and having the meaning set forth in the recitals of this Renewal License.
1.19. Government Access Channel: An Access Channel made available by the
Licensee for use of the Issuing Authority and/or its Access Corporation to present non-
commercial governmental programming.
1.20. Gross Revenues: All revenues derived by the Licensee and/or its
Affiliates from the operation of the Cable System to provide Cable Service in the Town,
including, without limitation, the following items: fees, charges and payments collected from
Subscribers (including Commercial Subscribers) for Cable Services, including, without
limitation, Basic and premium Cable Services, video-on-demand Cable Services and pay-per-
view Cable Services and digital Cable Services; installation, reconnection, downgrade, upgrade
and similar charges; revenues received from rentals or sales to Subscribers of Converters, remote
controls and other Subscriber equipment used to provide Cable Service over the Cable System;
Leased Access Channel programming revenues; revenues that the Licensee receives from home
shopping channels as prorated to include such revenue attributable to the Cable System in the
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Town based on the number of Subscribers; advertising revenues as prorated to include such
revenue attributable to the Cable System in the Town based on the number of Subscribers; and
all fees imposed on the Licensee by this Renewal License and applicable law that are passed
through and paid by Subscribers ("fee-on-fee") in accordance with applicable law. For the
avoidance of doubt, Gross Revenues shall include the amount of the Licensee's gross advertising
revenue (i.e., without netting advertising commissions paid to third parties), calculated in
accordance with generally accepted accounting principles. Should any service provided by
Licensee over the Cable System be classified as a Cable Service by a final determination or
ruling of any agency or court having jurisdiction, after the exhaustion of all appeals related
thereto, the Issuing Authority shall be entitled, after notification to Licensee, to amend this
Renewal License in the manner prescribed under applicable State law or this Renewal License to
include revenue from Licensee's provision of such service as Gross Revenue, and Licensee shall
include revenue from such service as Gross Revenue on a going forward basis commencing with
the next available billing cycle following the date of issuance of the order memorializing said
determination or ruling. Gross Revenues based on bundled services shall be calculated in
accordance with Section 5.3.3 below. Gross Revenues shall be determined in accordance with
generally accepted accounting principles; provided, however, that Gross Revenues shall not
include:
1.20.1. Revenues received by any of the Licensee's Affiliates, except to
the extent that such revenues relate directly to the provision of Cable Services over the Cable
System in the Town;
1.20.2. Actual bad debts written off by the Licensee in the normal course
of its business, provided, however, that bad debt recoveries shall be included in Gross Revenue
during the period so collected;
1.20.3. Any revenues foregone as a result of (i) refunds, rebates or
discounts made to Subscribers, or (ii) the Licensee's provision of free or reduced cost Cable
Services to any Person, including without limitation, employees of the Licensee and public
institutions pursuant to M.G.L. Chapter 166A, Section 5(e); provided, however, that if the
Licensee receives trades, barters, services or other items of value instead of cash revenue then
such items shall be included in Gross Revenues;
1.20.4. Any revenues wholly generated by services that are defined and
classified as Non-Cable Services revenue under federal or State law including, without
limitation, revenues received from Telecommunications Services; revenues received from
Information Services, and directory or Internet advertising revenue including, but not limited to,
yellow page, white page, banner advertisement and electronic publishing;
1.20.5. Any revenues of the Licensee or any other Person which is
received directly from the sale of merchandise through any Cable Service distributed over the
Cable System, notwithstanding that portion of such revenue which represents or can be attributed
to a Subscriber fee or a payment for the use of the Cable System for the sale of such
merchandise, which portion shall be included in Gross Revenue;
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1.20.6. Revenues from the sale of Cable Services on the Cable System to
a reseller, when the reseller is required by the Town to pay (and does pay) License Fees to the
Town on the resale of the Cable Services;
1.20.7. Any tax, fee or assessment of general applicability imposed by a
Town, State, federal or other governmental entity and required to be collected from Subscribers
by the Licensee and remitted to the taxing entity(including, but not limited to, taxes in the nature
of a sales/use tax, communication tax and non-cable license fees);
1.20.8. Revenues from the sales of capital assets or sales of surplus
equipment; provided that this exclusion shall not include sales to Subscribers of Converters,
remote controls and any other Subscriber equipment for the provision of Cable Service over the
Cable System; and
1.20.9. Any fees or charges collected from Subscribers for the PEG
Access Capital Funding (except to the extent that the Issuing Authority provides the Licensee
with evidence that such fees and charges are included in the Gross Revenues of other cable
operators in the Town).
1.21. High-DejInition (HD) PEG Access Channel: A PEG Access Channel in
the high definition display format for digital television transmissions with video transmitted in a
16:9 aspect ratio with a resolution of 720p or such higher resolution as the Licensee determines
in its sole discretion.
1.22. Information Services: Shall be defined herein as it is defined under
Section 3 of the Communications Act, 47 U.S.C. § 153(24).
1.23. Issuing Authority: The Select Board of the Town of Lexington,
Massachusetts.
1.24. Leased Access Channel: A Channel that the Licensee designates for
commercial use pursuant to Section 612 of the Communications Act.
1.25. License Fee: The payments to be made by the Licensee to the Town,
which shall have the meaning as set forth in Section 622(g) of the Communications Act and
Section 9 of M.G.L. Chapter 166A.
1.26. Licensee: Verizon New England Inc., and its lawful and permitted
successors, assigns and transferees.
1.27. M.G.L. Chapter 166A: Chapter 166A of the General Laws of the
Commonwealth of Massachusetts.
1.28. Non-Cable Services: Any service that does not constitute Cable Service(s)
as defined herein over the FTTP Network in the Town, including, but not limited to, Information
Services and Telecommunications Services.
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1.29. Normal Business Hours: Those hours during which most similar
businesses in the community are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or some weekend hours.
1.30. Normal Operating Conditions: Those service conditions which are within
the control of the Licensee. Those conditions which are not within the control of the Licensee
include, but are not limited to, natural disasters, civil disturbances, power outages, telephone
network outages, and severe or unusual weather conditions. Those conditions which are
ordinarily within the control of the Licensee include, but are not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance
or upgrade of the Cable System.
1.31. PEG: Public, educational, and governmental.
1.32. PEG Access Channel: An Access Channel made available to the Town
and/or the Access Corporation for the presentation of PEG Access Programming pursuant to the
terms of this Renewal License.
1.33. PEG Access Programming: Non-commercial Video Programming
transmitted on the PEG Access Channel(s) pursuant to the terms of this Renewal License, and
applicable laws.
1.34. Person: Any corporation, partnership, limited partnership, association,
trust, organization, joint stock company, other business entity, individual, or governmental
entity.
1.35. Prime Rate: The prime rate of interest as published in the Wall Street
Journal.
1.36. Public Access Channel: An Access Channel made available by the
Licensee for the non-commercial use by the residents in the Town and/or the Access
Corporation.
1.37. Public Rights-of-Way: The surface of, as well as the spaces above and
below, any and all public streets, avenues, highways, boulevards, concourses, driveways, bridges,
tunnels, parks, parkways, waterways, bulkheads, piers, dedicated public utility easements, and
public grounds or waters and all other publicly owned real property within or belonging to the
Town,now or hereafter existing.
1.38. Renewal License: The non-exclusive Cable Television Renewal License
to be granted to the Licensee, as provided herein.
1.39. Respond: The Licensee's investigation of a Service Interruption by
receiving a Subscriber call and opening a trouble ticket, if required.
1.40. Service Area: The entire existing territorial limits of the Town.
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1.41. Service Call: The action taken by the Licensee to correct a Service
Interruption the effect of which is limited to an individual Subscriber.
1.42. Service Interruption: The loss of picture or sound on one or more
Channels.
1.43. Significant Outage: Any Service Interruption lasting at least four (4)
continuous hours that affects at least ten percent(10%) of the Subscribers in the Service Area.
1.44. Standard Definition (SD) PEG Access Channel: A PEG Access Channel
in the standard definition display format for digital television transmissions with video
transmitted in a 4:3 aspect ratio with a resolution up to 4801.
1.45. Standard Installation: Residential installations where the Subscriber has
underground lines within one hundred twenty-five (125) feet of trunk or feeder lines or within
one hundred fifty(150) feet of trunk or feeder lines, as described in Section 3.3 below.
1.46. State: The Commonwealth of Massachusetts.
1.47. Subscriber: Any Person who lawfully receives Cable Service distributed
over the Cable System with the Licensee's express permission.
1.48. Telecommunications Facilities: The Licensee's existing Telecommunica-
tions Services and Information Services facilities, including the FTTP Network.
1.49. Telecommunications Services: Shall be defined herein as it is defined
under Section 3 of the Communications Act,47 U.S.C. § 153(53).
1.50. Title IT Title II of the Communications Act.
1.51. Title VT Title VI of the Communications Act.
1.52. Town: The Town of Lexington, Massachusetts.
1.53. Video Programming or Programming: Shall be defined herein as it is
defined under Section 602(20) of the Communications Act, 47 U.S.C. § 522(20), meaning
programming provided by, or generally considered comparable to programming provided by, a
television broadcast station.
1.54. Video Service Provider or YSP: Any entity using, crossing, and/or
occupying the Public Rights-of-Way to provide Video Programming to multiple Subscribers
within the territorial boundaries of the Town, which entity the Issuing Authority has the lawful
authority to regulate or otherwise control.
2. GRANT OF RENEWAL LICENSE AUTHORITY
2.1 Grant of Authority: Subject to the terms and conditions of this Renewal
License and pursuant to M.G.L. Chapter 166A, the Issuing Authority hereby grants the Licensee
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the right to own, operate and maintain a Cable System in, under, over and along the Public
Rights-of-Way within the Town and subsequent additions thereto, in order to provide Cable
Service. This Renewal License grants no authority for the Licensee to use the Public Rights-of-
Way within the Town for any other purpose(s)unless otherwise provided herein. The Licensee's
FTTP Network is subject to M.G.L. c. 166 and as such is subject to regulation by the Town
consistent with that law. The Licensee shall adhere to all applicable local bylaws and lawful
regulations of the Town regarding Public Rights-of-Way and public works matters, including
rights-of-way management requirements with regard to public safety, aesthetics, pole
attachments and other legitimate municipal concerns. Nothing in this Section 2.1 shall be
deemed to prohibit the right of the Licensee to challenge the legality of such local bylaws,
regulations and requirements, or the right of the Issuing Authority to oppose any such challenge.
Consistent with and subject to the Licensee's existing authority to operate in the Public Rights-
of-Way, grant of this Renewal License does not establish priority for use over other present or
future permit holders or the Town's own use of Public Rights-of-Way. Any disputes between
the Licensee and other parties regarding use of the Public Rights-of-Way shall be resolved in
accordance with applicable law and regulations.
2.2. Issuing Authority Does Not Regulate Telecommunications: The parties
recognize that the FTTP Network is constructed, operated, and maintained as an upgrade to
and/or an extension of the Licensee's existing Telecommunications Facilities under Title II and
M.G.L. c. 166. In accordance with applicable law(s), the Issuing Authority's regulatory
authority under Title VI does not extend to the construction, installation, maintenance or
operation of the FTTP Network to the extent the FTTP Network is and/or was constructed,
installed, maintained or operated for the purpose of upgrading and/or extending Verizon's
existing Telecommunications Facilities for the provision of Non-Cable Services. The Town does
not and will not assert jurisdiction over the Licensee's FTTP Network in contravention of
applicable federal or State law(s). The Cable System shall be limited to the optical spectrum
wavelength(s), bandwidth or future technological capacity that is used for the transmission of
Cable Services to Subscribers within the Town and shall not include the Telecommunications
Facilities of the Licensee. Nothing in this Renewal License shall be construed to prohibit the
Licensee from offering any service over the Cable System that is not prohibited by federal or
State law provided that any requirements for Town authorization or permitting are not
inconsistent with federal and State law.
2.3. Term: The term of this Renewal License shall be for a period of five (5)
years, commencing on October 30, 2021 (the "Effective Date"), and shall expire at midnight on
October 29, 2026, unless the Renewal License is earlier terminated by Licensee pursuant to the
terms of Sections 2.4 or 2.5 of this Renewal License or revoked by the Issuing Authority as
provided herein.
2.4. Termination: Notwithstanding any provision herein to the contrary,
following the twenty-fourth (24th) month after the Effective Date, Licensee may terminate this
Renewal License and all obligations hereunder at any time during the remaining term of this
Renewal License for any reason, in Licensee's sole discretion, upon three hundred sixty five
(365)days' written notice to the Issuing Authority.
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2.5. Modification: If the Issuing Authority, after the Effective Date of this
Renewal License, grants any written franchise, agreement, or license, or grants any other written
and lawful authorization, to a VSP to provide Video Programming to residents of the Town in
the Service Area only using any portion of the Public Rights-of-Way that the Licensee believes
is on terms more favorable or less burdensome, taken on the whole, than the terms in this
Renewal License,the Issuing Authority and Licensee agree as follows:
(i) Upon Licensee's written notice to the Issuing Authority, Licensee and the Issuing
Authority shall, within thirty (30) days of the Issuing Authority's receipt of such
notice from the Licensee, commence good faith negotiations to discuss whether
such additional written franchise, agreement, or license, or other written and
lawful authorization is on terms more favorable or less burdensome, taken on the
whole, than the terms in this Renewal License. If, after such discussions, the
Licensee continues to believe that such additional written franchise, agreement, or
license, or other written and lawful authorization is on terms more favorable or
less burdensome, taken on the whole, than the terms in this Renewal License, the
Issuing Authority and the Licensee shall commence good faith negotiations to
lawfully amend this Renewal License to ensure that this Renewal License is not
on terms less favorable or more burdensome, taken on the whole, than the terms
in any such written franchise, agreement, license or other written authorization
granted to a VSP.
(ii) In no case shall such modification herein be applicable to a VSP and/or other
entity using crossing, and/or occupying the Public Rights-of-Way over which the
Issuing Authority has no lawful authority to regulate or otherwise control.
(iii) If, after such good faith negotiations, the Issuing Authority and Licensee cannot
reach agreement on possible amendment(s) to this Renewal License based on the
criteria above, then, either party may submit this matter to an independent
mediation firm.
2.6. Grant Not Exclusive: This Renewal License and the rights granted herein
to use and occupy the Public Rights-of-Way to provide Cable Services shall not be exclusive,
and the Issuing Authority reserves the right to grant other licenses for similar uses or for other
uses of the Public Rights-of-Way, or any portions thereof, to any Person, or to make any such
use itself, at any time during the term of this Renewal License. The issuance of additional cable
license(s) shall be subject to applicable federal laws, M.G.L. Chapter 166A and applicable
regulations promulgated thereunder.
2.7. Renewal License Subject to Applicable Federal and State Law: This
Renewal License is subject to and shall be governed by all applicable provisions of federal and
State law(s) and regulations as they may be amended, including but not limited to Title VI and
M.G.L. Chapter 166A.
2.8. Compliance with Federal and State Privacy Laws: Licensee shall comply
with the privacy provisions of Section 631 of the Communications Act and all other applicable
federal and State privacy laws and regulations. The parties agree that, during the term hereof,
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Licensee shall not be subject to any local laws or by-laws which conflict with such applicable
federal and/or State privacy laws, or which would impose additional or distinct requirements
upon Licensee with respect to Subscriber privacy other than those which are expressly set forth
in applicable federal and/or State privacy laws.
2.9. No Waiver:
2.9.1. The failure of the Issuing Authority on one or more occasions to
exercise a right or to require compliance or performance under this Renewal License, M.G.L.
Chapter 166A or any other applicable law shall not be deemed to constitute a waiver of such
right or a waiver of compliance or performance by the Issuing Authority, nor to excuse the
Licensee from complying or performing, unless such right or such compliance or performance
has been specifically waived in writing.
2.9.2. The failure of the Licensee on one or more occasions to exercise a
right under this Renewal License or applicable law, or to require performance under this
Renewal License, shall not be deemed to constitute a waiver of such right or of performance of
this Renewal License, nor shall it excuse the Issuing Authority from performance, unless such
right or performance has been specifically waived in writing.
2.10. Construction of Renewal License: The provisions of this Renewal License
shall be liberally construed to effectuate their objectives. Nothing herein shall be construed to
limit the scope or applicability of Section 625 of the Communications Act, 47 U.S.C. § 545.
2.11. Police Powers: Nothing in this Renewal License shall be construed to
prohibit the reasonable, necessary and lawful exercise of the Town's police powers, provided
that the Town shall not exercise its police powers in a manner that would result in a material
alteration of the terms and conditions of this Renewal License. Any such police powers
exercised by the Town in contravention of the preceding sentence shall be of no effect with
respect to this Renewal License.
2.12. Transfer of the Renewal License:
2.12.1. Subject to Section 617 of the Communications Act, M.G.L.
Chapter 166A and Section 2.12.2 below, the Licensee shall not transfer this Renewal License
without the prior written consent of the Issuing Authority,provided that such consent shall not be
arbitrarily or unreasonably withheld, delayed or conditioned. Such consent shall be given only
after a public hearing upon a written application therefore on forms prescribed by the Cable
Division and/or the FCC. Subject to applicable law, the Licensee shall submit to the Issuing
Authority an original and one (1) copy of the application on FCC Form 394 requesting such
transfer request. The Issuing Authority shall have one hundred twenty (120) days, or such other
time frame that may be established by applicable law, from the filing of the completed Form 394
to take final action on it. If the Issuing Authority has not taken final action within such 120 day
period, then the application shall be deemed approved, unless said 120 day period is extended by
the written mutual consent of the parties.
2.12.2. The Licensee shall not be required to obtain the Issuing
Authority's consent to transfer this Renewal License in connection with any transaction that does
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not constitute a transfer of control under applicable State laws and regulations, including,
without limitation, the following: (i) (A) a transfer of an ownership or other interest in the
Licensee to the parent of the Licensee or to another Affiliate of the Licensee; (B) a transfer or
assignment of this Renewal License or control thereof to the parent of the Licensee or to another
Affiliate of the Licensee; (C) any action which is the result of a merger of the parent of the
Licensee; or (D) any action which is the result of a merger of another Affiliate of the Licensee;
or (ii) in connection with a transfer in trust, by mortgage, by other hypothecation, by assignment
of any rights, title, or interest of the Licensee in this Renewal License or the Cable System in
order to secure indebtedness; provided, however, that to the extent that any of the foregoing
transactions are determined to constitute a transfer of control pursuant to 207 CMR 4.01, then
such transaction shall be subject to the Cable Division's transfer regulations (207 CMR 4.00, et.
seq.).
2.12.3. Pursuant to 207 CMR 4.04, as may be amended, and applicable
federal law, in considering a request to transfer control of this Renewal License, the Issuing
Authority may consider only the transferee's management experience, technical expertise,
financial capability and legal ability to operate the Cable System under this Renewal License,
and any other criteria allowable under applicable law and/or regulation.
2.12.4. The consent or approval of the Issuing Authority to a transfer of
this Renewal License shall not constitute a waiver or release of the rights of the Town under this
Renewal License.
2.12.5. In the event that this Renewal License is transferred, the
transferee shall be subject to all of the terms and conditions contained in this Renewal License.
3 PROVISION OF CABLE SERVICE
3.1. Service Area: Subject to the issuance of all necessary permits by the
Town, the Licensee shall continue to offer Cable Service to all residential households in the
Town, except: (A) for periods of Force Majeure; (B) for periods of delay resulting from the
Licensee's inability to obtain authority from the Town to access Public Rights-of-Way in the
Service Area; (C) in developments or buildings that are subject to claimed exclusive
arrangements with other cable providers; (D) in developments or buildings that the Licensee
cannot access under reasonable terms and conditions after good faith negotiations, as determined
in good faith by the Licensee; and (E) in developments, buildings or other residential dwelling
units where the Licensee is unable to provide Cable Service for technical reasons or which
require non-standard facilities which are not available on a commercially reasonable basis, or
where the Licensee determines, in good faith, that providing such service is not commercially
reasonable.
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3.2. Availability of Cable Service: The Licensee shall make Cable Service
available to all residential dwelling units, and may make Cable Service available to businesses,
within the Town in accordance with Section 3.1 above. In the areas in which the Licensee shall
provide Cable Service, the Licensee shall be required to connect, at the Licensee's expense, all
residential dwelling units with underground lines that are within one hundred twenty five (125)
feet of trunk or feeder lines not otherwise already served by Licensee's FTTP Network and all
residential dwelling units with aerial lines that are within one hundred fifty(150) feet of trunk or
feeder lines not otherwise already served by Licensee's FTTP Network. The Licensee shall be
allowed to recover, from a Subscriber who requests such connection, actual costs incurred for
residential dwelling unit connections that exceed one hundred twenty-five (125) feet for
underground lines and one hundred fifty (150) for aerial lines and actual costs incurred to
connect any non-residential dwelling unit Subscriber.
3.3. Cable Service to Public Buildings: Subject to applicable law and
regulation, if requested by the Issuing Authority pursuant to written notice to Licensee, Licensee
shall provide one (1) Cable Service drop, outlet and monthly Basic Service along its activated
Cable System route in the Town to public schools, police and fire stations, public libraries and
other public buildings designated in writing by the Issuing Authority and set forth in Exhibit A.
The parties shall adhere to the procedures and timelines in accordance with the FCC's 2019
Third Report and Order in the Matter of Implementation of Section 621 of the Cable Act (the
"621 Order"), as such 621 Order may be amended from time to time.
4 SYSTEM FACILITIES
4.1. System Characteristics: The Licensee's Cable System shall meet or
exceed the following requirements:
4.1.1. The Cable System shall be operated with an initial digital carrier
passband of between 50 and 860 MHz.
4.1.2. The Cable System shall be operated to be an active two-way plant
for subscriber interaction, if any, required for the selection or use of Cable Service.
4.1.3. The Cable System shall comply with applicable FCC technical
standards, as such standards may be amended from time to time.
4.1.4. The Cable System shall conform in all material respects to the
following standards to the extent applicable: Occupational Safety and Health Administration
regulations,the National Electrical Code and the National Electrical Safety Code.
4.1.5. The Cable System shall be capable of passing through stereo
signals to Subscribers.
4.2. Emergency Alert System: The Licensee shall comply with the Emergency
Alert System ("EAS") requirements of the FCC and applicable State and local EAS Plans in
order that emergency messages may be distributed over the Cable System.
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4.3. Parental Control Capability: The Licensee shall comply with all
applicable requirements of federal law governing Subscribers' capability to control the reception
of any Channels being received on their television sets.
5 PEG ACCESS SERVICES AND SUPPORT
5.1 PEG Access Channels
5.1.1. The Licensee shall continue to make available to the Issuing
Authority and/or the Access Corporation, as designated in writing by the Issuing Authority, three
(3) SD PEG Access Channels on its Basic Service Tier.
5.1.2. In addition to the three (3) SD PEG Access Channels referenced
above, the Licensee shall make one (1) HD PEG Access Channel available to the Town and/or
the Access Corporation within two hundred seventy (270) days of the Effective Date of this
License. The programming on such HD PEG Access Channel shall be distinct
programming. The Issuing Authority or the Access Corporation may subsequently change the
programming on the HD PEG Access Channel from distinct programming to an HD simulcast of
an existing SD PEG Access Channel, upon one hundred (180) days prior written notice from the
Issuing Authority to the Licensee, which change shall not occur more than once during the
Renewal License term. Only to the extent permitted by law, the Licensee shall be allowed to
recover from Subscribers applicable costs incurred to transmit HD PEG Access Channel
programming of any type.
5.1.3. All programming content for the HD PEG Access Channel shall be
transmitted to Licensee in HD-SDI format with a resolution of 720p. Licensee reserves the right
to reassign channel number and location for any or all of the PEG Access Channels at any time
during the term of this Renewal License. The Issuing Authority expressly acknowledges that an
HD PEG Access Channel may not be available at all times during the term of this Renewal
License on Licensee's Basic Service Tier, and in order to view the HD PEG Access Channel, a
Subscriber may be required to upgrade equipment at an additional charge.
5.1.4. The Licensee may carry PEG Access Programming within and
outside the Town's jurisdictional boundaries, provided that PEG Access Programming from
outside the Town which is carried in the Town shall not be cablecast on the PEG Access
Channels made available to the Issuing Authority and/or the Access Corporation. The Licensee
reserves the right to make or change PEG Access Channel assignments in its sole discretion. If a
PEG Access Channel provided under this Article is not being utilized by the Town and/or the
Access Corporation, the Licensee may utilize such PEG Access Channel by providing at least
sixty(60) days advance written notice to the Issuing Authority. In the event that the Town and/or
the Access Corporation determine to use such PEG Access capacity for PEG Access purposes,
the Issuing Authority shall have the right to utilize such PEG Access Channel by providing at
least sixty(60)days advance written notice to the Licensee.
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5.2. PEG Interconnection:
5.2.1. The Licensee shall continue to connect to equipment owned by the
Town and/or the Access Corporation located at the PEG Access Studio, 1001 Main Campus
Drive, Kline Hall, Lexington, Massachusetts 02421. The demarcation point between the
Licensee's signal processing equipment (which the Licensee shall own, install and maintain) and
the Town's PEG and/or Access Corporation's PEG Access equipment shall be at the output of
the Town's signal processing equipment at the PEG Access Studio. The Town and/or the Access
Corporation shall be solely responsible for operating its switching equipment and the picture and
audio quality of all PEG Access Programming up to the demarcation point. The Town and/or the
Access Corporation shall be solely responsible for ensuring all PEG Access Programming is
inserted on the appropriate upstream PEG Access Channel. PEG Access Programming shall be
transmitted to the Licensee in baseband, SD-SDI or HD-SDI format for the SD PEG Access
Channels made available pursuant to Section 5.1.1 supra and in HD-SDI format with a resolution
of 720p for the HD PEG Access Channel made available under Section 5.1.2 supra, with either
mono or stereo audio signals. The Licensee shall not be obligated to provide the Town or the
Access Corporation with either cablecast equipment and facilities or the personnel responsible
for maintaining and operating equipment and facilities on the Town's or Access Corporation's
side of the demarcation point. The Issuing Authority and the Licensee shall work together in
good faith to resolve any connection issues.
5.2.2. The Licensee may charge the Issuing Authority for costs associated
with any of the following:
(i) an upgrade by the Licensee of equipment on its side of the
demarcation point where the need for such upgrade is initiated solely by the Issuing Authority or
the Access Corporation in writing only;
(ii) a physical relocation by the Licensee of a connection on the
Licensee's side of the demarcation point where the need for such relocation is initiated solely by
the Issuing Authority or the Access Corporation in writing only;
(iii) a physical re-installation and/or replacement by the
Licensee of a connection on the Licensee's side of the demarcation point where the need for such
re-installation and/or replacement is initiated solely by the Issuing Authority or the Access
Corporation in writing only; or
(iv) a physical installation by the Licensee of a new connection
on its side of the demarcation point if initiated solely by the Issuing Authority or the Access
Corporation in writing only.
The Issuing Authority's responsibility for the above costs is subject to the
Licensee's prior disclosure of all such costs in writing and the Issuing Authority's express
written consent to such costs.
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5.3. PEG Access Capital Funding and PEG Access/Cable-Related Support:
5.3.1. PEG Access Capital Funding and Payments:
5.3.1.1. The Licensee shall provide funding to the Issuing
Authority for PEG access capital costs (the "PEG Access Capital Funding") of One Hundred
Thousand Dollars ($100,000)to the Issuing Authority. The first payment of thirty three thousand
three hundred thirty three dollars and thirty four cents ($33,333.34) shall be made within forty-
five (45) days of the Effective Date. The two subsequent payments of thirty three thousand three
hundred thirty three dollars and thirty three cents ($33,333.33) shall each be made on the first
and second anniversaries of the Effective Date of this Renewal License.
5.3.1.2. Under no circumstances shall said PEG Access Capital
Funding payments required herein be counted against (i) the PEG Access/Cable-Related Annual
Support Funding payable to the Issuing Authority pursuant to Section 5.3.2 below; (ii) applicable
License Fees paid to the Town, the State and/or the FCC; and/or(iii) any other fees or payments
required by applicable laws.
5.3.2. PEG Access/Cable-Related Annual Support Funding and Payments
5.3.2.1. The Licensee shall provide annual funding to the
Issuing Authority to be used for cable-related funding and to support ongoing operations of PEG
Access. (the "PEG Access/Cable-Related Support Funding"). Such funding shall be used by the
Town for cable-related purposes and/or by the Access Corporation for personnel, operating and
other related expenses incurred in connection with PEG Access Programming operations.
5.3.2.2. The PEG Access/Cable-Related Annual Support
Funding provided by the Licensee hereunder shall be five percent (5%) of the Licensee's annual
Gross Revenues, as defined in Section 1.20 supra, and shall be paid in accordance with Section
5.3.3 below; provided, however, that if the renewal license of another cable operator (or its
successor or assign) in the Town, provides for such operator to pay a lower percentage during
such time period, then the percentage of the Licensee's PEG Access/Cable-Related Support
Funding payments herein shall be reduced to match such lower percentage over that same time
period.
5.3.3. Payments: The PEG Access/Cable-Related payments, pursuant to
Section 5.3.2 above, shall be made no later than forty-five (45) days following the end of each
calendar quarter. Each such payment shall be accompanied by a Gross Revenues reporting form
substantially in the form of Exhibit B. The Licensee shall be allowed to provide an extra payment
if needed to correct any payments that were incorrectly omitted, or shall have the right to offset
against future payments any payments that were incorrectly submitted, in connection with the
quarterly remittances within ninety(90) days following the close of the calendar quarter for which
such payments were applicable. For purposes of this Section 5.3.3, the period for determining
Gross Revenues shall be the preceding calendar quarter. The Licensee represents that, in
accordance with the terms of its Final Cable License with the Issuing Authority dated October 30,
2006, when the Licensee bundled Cable Service with Non-Cable Service, the calculation of Gross
Revenues (for purposes of calculating PEG Access Support payments to the Issuing Authority)
15
was based on the cost of Cable Services as billed to Subscribers. The Licensee and the Issuing
Authority agree to the continuation of this calculation methodology under this Renewal License.
The parties agree that tariffed Telecommunications Services that cannot be discounted under State
or federal law or regulation are excluded from the bundled discount allocation in this Section
5.3.3.
5.3.4. Recovery of Costs: To the extent permitted by applicable federal
law, the Licensee may recover the costs of the PEG Access Capital Funding in Section 5.3.1., the
PEG Access/Cable-Related Annual Support Funding in Section 5.3.2 and any other costs,
including interconnection costs, arising from the provision of PEG Access/Cable-Related services
from Subscribers and to include such costs as separately billed line items on each Subscriber's
bill.
5.3.5. Late Payments: In the event that any of the PEG Access Capital
Funding (Section 5.3.1), the PEG Access/Cable-Related Support (Section 5.3.2) and/or the
License Fee payments (Section 6.1 below) is or are not paid on or before the due date set forth in
this Renewal License for such payments, then interest shall accrue from the due date until the
date paid at the rate of two percent (2%) per annum above the Prime Rate, compounded
annually.
5.4 PEG Access Channel MaintenancelTechnical Standards/Performance
Tests: The Licensee shall monitor the PEG Access Channels for technical quality consistent with
applicable FCC technical standards, as such standards may be amended from time to time, and
shall ensure that they are maintained at standards the same as those which apply to the Cable
System's commercial channels of similar format and resolution; provided that the Licensee is not
responsible for the production quality of PEG Access Programming productions, nor for any
deficiencies in the signal that it receives from the Town and/or the Access Corporation. Upon
the written request of the Issuing Authority, the Licensee shall make available to the Town a
copy of the Licensee's most recent annual performance tests.
5.5 Censorship: The Licensee, the Town and the Access Corporation shall
comply with applicable laws regarding program censorship or any other control of the content of
the PEG Access Programming on the Cable System.
5.6 PEG Operational Rules. The Issuing Authority and/or the Access
Corporation shall establish rules and regulations that require all local producers and users of any
of the PEG Access facilities or Channels to assume individual responsibility for any program-
based liability including but not limited to liability for copyright infringement or defamation, and
to hold the Town and the Licensee harmless for same, subject to applicable Title VI and FCC
requirements. The Access Corporation shall establish rules and regulations for use of PEG
Access facilities consistent with, and as required by, Section 611 of the Communications Act(47
U.S.C. § 53 1) and this Renewal License.
5.7. No Access Corporation Rights: The Issuing Authority and the Licensee
herein acknowledge and agree that any Access Corporation is not a party to this Renewal
License and that any provisions herein that may affect an Access Corporation are not intended to
create any rights on behalf of any Access Corporation.
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5.8 Listing of PEG Access Programing On Licensee's Electronic Program
Guide: If the Licensee lists PEG Access Channel program content titles on its electronic
program guide in any other municipality in the State (other than on a test or trial basis), then it
shall, upon written request, discuss in good faith with the Issuing Authority the technical
feasibility and commercial reasonability of listing the Town's PEG Access Channel program
content titles on the Licensee's electronic program guide; however, the Licensee shall not be
required to list the Town's PEG Access Channel program content titles on its electronic program
guide.
5.9 PEG Access Channel Video-On-Demand: If the Licensee provides any
other municipality in the State with PEG Access Channel programming "video-on-demand"
(VOD) (other than on a test or trial basis), then it shall, upon written request, discuss in good
faith with the Issuing Authority the technical feasibility and commercial reasonability of
providing PEG Access Channel programming VOD in the Town; however, the Licensee shall
not be required to provide PEG Access Channel programming VOD in the Town.
6. LICENSE FEES
6.1. License Fee: Pursuant to Section 9 of M.G.L. Chapter 166A, the Licensee
shall pay to the Town, throughout the term of this Renewal License, a license fee equal to fifty
cents ($.50)per Subscriber per year.
6.2. Maximum License Fee Obligation: The Licensee shall not be liable for a
total License Fee, pursuant to this Renewal License and applicable law in excess of five percent
(5%) of annual Gross Revenues (as defined in Section 1.20 supra) and in accordance with the
definition of the term Franchise Fee and the five percent (5%) cap on Franchise Fee(s) as set
forth in Section 622 of the Communications Act, 47 U.S.C. 542 and FCC regulations and orders
pursuant thereto.
6.3. Payment Information: In determining the License Fee pursuant to Section
6.1 above, the number of Subscribers shall be measured as of December 31' of the preceding
calendar year. The License Fee shall be paid no later than March 15th of each year during the
term of this Renewal License.
6.4. Limitation on Actions: The period of limitation for recovery of any
payment obligation under this Renewal License shall be three (3) years from the date on which
payment by the Licensee is due.
6.5. Recomputation:
6.5.1 Tender or acceptance of any payment made pursuant to Article 5
and/or 6 herein shall not be construed as an accord that the amount paid is correct, nor shall such
acceptance of payment be construed as a release of any claim that the Issuing Authority may
have for additional sums, including interest payable under Section 5.3.5 above and/or pursuant to
this Section 6.6. All amounts shall be subject to audit and recomputation by the Issuing
Authority pursuant to this Section 6.5.
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6.5.2. If the Issuing Authority has reason to believe that any such
payment is incorrect, it shall notify the Licensee thereof in writing within ninety (90) business
days after receiving such payment. The Licensee shall then have ninety (90)business days after
receipt of such notice to provide the Town with additional information documenting the accuracy
of such payment. In the event that the Issuing Authority does not reasonably believe that such
documentation supports the accuracy of such payment, then the Issuing Authority may conduct
an audit of such payment, provided that the Issuing Authority shall be limited to one audit every
three years during the term of this Renewal License, which audit shall be applicable to the
previous three (3) year period in accordance with Section 6.4 above. If, after such audit and
recomputation, the Issuing Authority determines that an additional fee is owed to the Town, then
the Licensee shall be provided with a reasonable opportunity to review the results of such audit
and to dispute any audit results, and shall pay any such undisputed amounts within thirty (30)
business days after completion of such review, together with any applicable late charges
calculated pursuant to Section 5.3.5 above.
6.6. Method of Payment: All License Fee payments by the Licensee to the
Town pursuant to this Renewal License shall be made payable to the Town and deposited with
the Town Treasurer.
6.7. Other Payment Obligations and Exclusions: Subject to Section 622(g)(1)
of the Communications Act, the License Fee payments shall be in addition to and shall not
constitute an offset or credit against any and all taxes or other fees or charges of general
applicability which the Licensee or any Affiliate shall be required to pay to the Town, or to any
State or federal agency or authority, as required herein or by law; the payment of said taxes, fees
or charges shall not constitute a credit or offset against the License Fee payments herein.
6.8. Affiliates Use of System: Use of the Cable System by any Affiliates of the
Licensee shall be in compliance with applicable State and/or federal laws.
7. CUSTOMER SERVICE
The customer service standards in this Article 7 shall apply to the Licensee
regarding its provision of Cable Services over the Cable System in the Town, and shall be
binding unless amended by written consent of the parties.
7.1. Telephone Availability:
7.1.1. The Licensee shall maintain a local and a toll-free number to
receive all calls and inquiries from Subscribers in the Town and/or residents regarding Cable
Service. The Licensee's representatives shall be trained and qualified to answer questions related
to Cable Service in the Town and shall be available to receive reports of Service Interruptions
and Significant Outages twenty-four (24) hours a day, seven (7) days a week, and all other
inquiries at least forty-five (45) hours per week. The Licensee's representatives shall identify
themselves by name when answering this number.
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The Licensee reserves the right to modify its business operations with
respect to such customer service call center; provided, however, that the Licensee shall comply
with all State and federal requirements pertaining to the hours of operation of such customer call
center. If the Licensee does not maintain and operate its customer service call center twenty-four
(24) hours a day, seven (7) days a week, the Licensee shall maintain an Automated Response
Unit ("ARU") or Voice Response Unit ("VRU") for Subscriber inquiries, outage reporting,
Complaints, and the provision of information regarding billing, technical support, and other
Subscriber information, including self-help options. The ARU or VRU shall offer the Subscriber
the opportunity to schedule a callback on the next business day.
7.1.2. The Licensee's telephone numbers shall be listed, with appropriate
description (e.g. administration, customer service, billing, repair, etc.), in the directory published
by the local telephone company or companies serving the Town, beginning with the next
publication cycle after the Effective Date.
7.1.3. The Licensee may use an ARU or a VRU to distribute telephone
calls. If a foreign language routing option is provided, and the Subscriber does not enter an
option, the menu will default to the first-tier menu of English options. After the first-tier menu
(not including a foreign language rollout) has run through three (3) times, if customers do not
select any option, the ARU or VRU will forward the call to a queue for a live representative.
The Licensee may reasonably substitute this requirement with another method of handling calls
from customers who do not have touch-tone telephones.
7.1.4. Under Normal Operating Conditions, calls received by the
Licensee shall be answered within thirty (30) seconds. The Licensee shall meet this standard for
ninety percent (90%) of the calls it receives at all call centers receiving calls from Subscribers, as
measured on a cumulative quarterly calendar basis. Measurement of this standard shall include
all calls received by the Licensee at all call centers receiving calls from Subscribers, whether
they are answered by a live representative, by an automated attendant, or abandoned after 30
seconds of call waiting.
7.1.5. Under Normal Operating Conditions, callers to the Licensee shall
receive a busy signal less than three percent(3%) of the time during any calendar quarter.
7.1.6. Upon written request from the Issuing Authority, but in no event
more than once a quarter, thirty (30) days following the end of each quarter, the Licensee shall
report to the Issuing Authority in writing the following for all call centers receiving calls from
Subscribers except for temporary telephone numbers set up for national promotions:
(1) Percentage of calls answered within thirty (30) seconds as set forth
in Section 7.1.4.
(2) Percentage of time customers received busy signal when calling
the customer service center as set forth in Section 7.1.5.
19
Subject to applicable consumer privacy requirements, underlying
information used to generate said reports will be made available to the Town for review upon
reasonable request.
7.1.7. At the Licensee's option, the measurements and reporting above
may be changed from calendar quarters to billing or accounting quarters. The Licensee shall
notify the Issuing Authority in writing of such a change at least thirty (30) days in advance of
any implementation.
7.2. Installations and Service Appointments:
7.2.1. All installations shall be in accordance with applicable FCC rules
relating to grounding, connection of equipment, and the provision of required consumer
information and literature to adequately inform the Subscriber about using the Licensee-supplied
equipment and Cable Service.
7.2.2. The Standard Installation shall be performed within seven (7)
business days after the placement of the Optical Network Terminal ("ONT") on the customer's
premises or within seven(7)business days after an order is placed if the ONT is already installed
on the customer's premises. The Licensee shall meet this standard for ninety-five percent (95%)
of the Standard Installations it performs, as measured on a calendar quarter basis, excluding
customer requests for connection later than seven (7) days after ONT placement or later than
seven(7) days after an order is placed if the ONT is already installed on the customer's premises.
7.2.3. The Licensee shall provide the Issuing Authority with a report,
upon written request from the Issuing Authority but in no event more than once a quarter thirty
(30) days following the end of each quarter, noting the percentage of Standard Installations
completed within the seven (7) day period, excluding those requested outside of the seven (7)
day period by the Subscriber. Subject to applicable consumer privacy requirements, underlying
information used to generate said reports shall be made available to the Issuing Authority for
review upon reasonable request. At the Licensee's option, the measurements and reporting of
the above may be changed from calendar quarters to billing or accounting quarters. The
Licensee shall notify the Issuing Authority in writing of such a change not less than thirty (30)
days in advance.
7.2.4. The Licensee shall offer Subscribers "appointment window"
alternatives for arrival to perform installations, Service Calls and other activities of a maximum
four (4) hours scheduled time block during appropriate daylight available hours, generally
beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location exception. At
the Licensee's discretion, the Licensee may offer Subscribers appointment arrival times other
than these four (4) hour time blocks, if agreeable to the Subscriber. These hour restrictions do
not apply to weekends.
7.3. Service Interruptions and Outages:
7.3.1. The Licensee shall exercise commercially reasonable efforts to
limit any Significant Outage for the purpose of maintaining, repairing, or constructing the Cable
20
System. Except in an emergency or other situation necessitating a more expedited or alternative
notification procedure, the Licensee may schedule a Significant Outage for a period of more than
four (4) hours during any twenty-four (24) hour period only after the Town and each affected
Subscriber in the Service Area have been given fifteen (15) days prior notice of the proposed
Significant Outage.
7.3.2. Under Normal Operating Conditions, the Licensee shall Respond
to a call from a Subscriber regarding a Service Interruption or other service problems within the
following time frames:
(1) Within twenty-four (24) hours, including weekends, of receiving
Subscriber calls respecting Service Interruptions in the Service Area.
(2) The Licensee shall begin actions to correct all other Cable Service
problems the next business day after notification by the Subscriber or the Town of a Cable
Service problem.
7.3.3. Under Normal Operating Conditions, the Licensee shall complete
Service Calls within seventy-two (72) hours of the time the Licensee commences to Respond to
the Service Interruption, not including weekends and situations where the Subscriber is not
reasonably available for a Service Call to correct the Service Interruption within the seventy-two
(72)hour period.
7.3.4. The Licensee shall meet the standard in Section 7.3.4 for ninety
percent(90%) of the Service Calls it completes, as measured on a quarterly basis.
7.3.5. The Licensee shall provide the Issuing Authority with a report in
writing, upon written request from the Issuing Authority, but in no event more than once a
quarter within thirty (30) days following the end of each calendar quarter, noting the percentage
of Service Calls completed within the seventy-two (72) hour period not including Service Calls
where the Subscriber was reasonably unavailable for a Service Call within the seventy-two (72)
hour period as set forth in this Section 7.3. Subject to applicable consumer privacy requirements,
underlying information used to generate said reports shall be made available to the Issuing
Authority for review upon reasonable request. At the Licensee's option, the above measurements
and reporting may be changed from calendar quarters to billing or accounting quarters. The
Licensee shall notify the Issuing Authority in writing of such a change at least thirty(30) days in
advance.
7.3.6. Under Normal Operating Conditions, if a Significant Outage
affects all Video Programming Cable Services for more than twenty-four(24) consecutive hours,
the Licensee shall issue an automatic credit to the affected Subscribers in the amount equal to
their monthly recurring charges for the proportionate time the Cable Service was out, or a credit
to the affected Subscribers in the amount equal to the charge for the Basic Service for the
proportionate time the Cable Service was out, whichever is technically feasible or, if both are
technically feasible, as determined by the Licensee provided that such determination is non-
discriminatory and in accordance with applicable laws. Such credit shall be reflected on
Subscriber billing statements within the next available billing cycle following the outage.
21
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7.3.7. With respect to service issues concerning Cable Services provided
to Town facilities, the Licensee shall Respond to all inquiries from the Town within four (4)
hours and shall commence necessary repairs within twenty-four (24) hours under Normal
Operating Conditions. If such repairs cannot be completed within twenty-four (24) hours, the
Licensee shall notify the Issuing Authority in writing as to the reason(s) for the delay and
provide an estimated time of repair.
7.4. Subscriber Complaints:
Under Normal Operating Conditions, the Licensee shall resolve Subscriber
Complaints referred by the Issuing Authority within seventy-two (72) hours; provided, however,
that the Licensee shall notify the Issuing Authority of those matters that necessitate an excess of
seventy-two (72) hours to resolve, which matters shall be resolved within fifteen(15) days of the
initial Complaint. The Issuing Authority may require reasonable documentation to be provided
by the Licensee to substantiate the request for additional time to resolve the problem. For
purposes of this Section 7.4, "resolve" means that the Licensee shall perform those actions,
which, in the normal course of business, are necessary to investigate the Subscriber's Complaint
and advise the Subscriber of the results of that investigation.
7.5. Billing:
7.5.1. Subscriber bills shall be itemized to describe Cable Services
purchased by Subscribers and related equipment charges, and shall include the information
required by 207 CMR 10.03(1) in clear, concise and understandable language and format. Bills
shall clearly delineate all Cable Service activity during the billing period, including optional
charges, rebates, credits, and aggregate late charges. In accordance with applicable law(s), the
Licensee shall be allowed to itemize as separate line items, without limitation, License Fees,
taxes and/or other governmentally imposed fees. The Licensee shall maintain records of the date
and place of mailing of Subscriber bills.
7.5.2. In accordance with 207 CMR 10.05(1), Subscriber payment shall
be due on the due date marked on the bill, which shall be a date certain and in no case a
statement that the bill is due upon receipt. The due date shall not be less than five (5) business
days following the mailing date of the bill.
7.5.3. A specific due date shall be listed on the bill of every Subscriber.
7.5.4. Any billing disputes registered by a Subscriber shall be resolved
in accordance with 207 CMR 10.07.
7.5.5. The Licensee shall notify the Subscriber of the result of its
investigation of any Complaint and shall give an explanation for its decision within thirty (30)
business days after the receipt of the Complaint. The Subscriber shall forfeit any rights under
207 CMR 10.07 if he or she fails to pay the undisputed balance within 30 days. Any Subscriber
who disagrees with the results of the Licensee's investigation shall promptly inquire about and
take advantage of any Complaint resolution mechanism, formal or informal, available under this
Renewal License or through the Issuing Authority before the Cable Division may accept a
22
petition. The Subscriber or the Licensee may petition the Cable Division to resolve disputed
matters within thirty(30) days of any final action.
7.5.6. The Licensee shall forward a copy of any Cable Service related
billing inserts or other mailing sent to Subscribers,to the Issuing Authority upon written request.
7.5.7. The Licensee shall provide all Subscribers with the option of
paying for Cable Service by check or an automatic payment option where the amount of the bill
is automatically deducted from a checking account designated by the Subscriber. The Licensee
may in the future, at its discretion, permit payment by using a major credit card on a
preauthorized basis. Based on credit history, at the option of the Licensee, the payment
alternative may be limited.
7.6. Deposits, Refunds and Credits:
7.6.1. The Licensee shall comply with 207 CMR 10.08 with respect to
security deposits.
7.6.2. Under Normal Operating Conditions, refund checks shall be issued
within the next available billing cycle following the resolution of the event giving rise to the
refund(e.g., equipment return and final bill payment).
7.6.3. Credits for Cable Service shall be issued no later than the
Subscriber's next available billing cycle, following the determination that a credit is warranted,
and the credit is approved and processed. Such approval and processing shall not be
unreasonably delayed.
7.7. .Termination ofService:
Service:
7.7.1. The Licensee shall comply with 207 CMR 10.05 with respect to
delinquency and termination of service.
7.7.2. In accordance with applicable laws and regulations, nothing in
these standards shall limit the right of the Licensee to deny Cable Service for non-payment of
previously provided Cable Services, refusal to pay any required deposit, theft of Cable Service,
damage to the Licensee's equipment, abusive and/or threatening behavior toward the Licensee's
employees or representatives, or refusal to provide credit history information or refusal to allow
the Licensee to validate the identity, credit history and credit worthiness via an external credit
agency.
7.8. Communications with Subscribers:
7.8.1. The Licensee shall require that: (i) all Licensee personnel,
contractors and subcontractors contacting Subscribers or potential Subscribers at the homes of
such Subscribers or potential Subscribers wear a clearly visible identification card bearing their
name and photograph; (ii) all Licensee representatives wear appropriate clothing while working
at a Subscriber's premises; and (iii) every service vehicle of the Licensee and its contractors or
subcontractors shall (a) be clearly identified as such to the public, (b) have the Licensee's logo
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plainly visible and (c) have the contractor's t subcontractor's name plus markings (such as a
magnetic door sign) indicating they are under contract to the Licensee. In addition, the Licensee
shall make reasonable effort to account for all identification cards at all times.
7.8.2. The Licensee shall require that all contact with a Subscriber or
potential Subscriber by a Person representing the Licensee shall be conducted in a courteous and
professional manner.
7.8.3. The Licensee shall send annual notices to all Subscribers
informing them that any Complaints or inquiries not satisfactorily handled by the Licensee may
be referred to the Town.
7.8.4. All notices identified in this Section 7.8 shall be by either:
(1) A separate document included with a billing statement or
included on the portion of the monthly bill that is to be retained by the Subscriber;
(2) A separate electronic notification, if allowed under
applicable laws and regulations;
(3) A separate on-screen notification; or
(4) Any other reasonable written means.
7.8.5. Pursuant to 207 CMR 10.01(1), the Licensee shall give written
notice of its billing practices to potential Subscribers before a subscription agreement is reached.
Pursuant to 207 CMR 10.01(3), the Licensee shall provide the Issuing Authority and all affected
Subscribers with at least thirty (30) day's-notice prior to implementing a change of one of its
billing practices.
7.8.6. The Licensee shall provide notice, as may be required by
applicable FCC regulations, to Subscribers of any pricing changes or additional changes
(excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in
Cable Services, including channel line-ups.
7.8.7. The Licensee shall provide information to all Subscribers about
each of the following items at the time of installation of Cable Services, annually to all
Subscribers, and at any time upon request from any Subscriber:
(1) Products and Cable Service offered;
(2) Prices and options for Cable Services and condition of
subscription to Cable Services, including prices for Cable Service options, equipment rentals,
program guides, installation, downgrades, late fees and other fees charged by the Licensee
related to Cable Service;
(3) Installation and maintenance policies;
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(4) Channel positions of Cable Services offered on the Cable
System;
(5) Complaint procedures, including the name, address and
telephone number of the Issuing Authority, but with a notice advising the Subscriber to initially
contact the Licensee about all Complaints and questions;
(6) Procedures for requesting Cable Service credit;
(7) The availability of a parental control device;
(8) Licensee practices and procedures for protecting against
invasion of privacy; and
(9) The address and telephone number of the Licensee's office
to which Complaints may be reported.
8. REPORTS AND RECORDS
8.1. Open Books and Records: Upon at least thirty (30) business days written
notice to the Licensee, the Issuing Authority or its designee shall have the right to inspect at a
location reasonably and mutually convenient to the parties hereto the Licensee's books and
records pertaining to the Licensee's provision of Cable Service in the Town during Licensee's
regular business hours and on a reasonable and non-disruptive basis, as is reasonably necessary
to ensure compliance with the terms of this Renewal License. Such notice shall specifically
reference the section or subsection of this Renewal License which is under review, so that the
Licensee may organize the necessary books and records for appropriate access by the Issuing
Authority. The Licensee shall not be required to maintain any books and records for License
compliance purposes longer than three (3) years. Notwithstanding anything to the contrary set
forth herein, the Licensee shall not be required to disclose information that it reasonably deems
to be proprietary or confidential in nature, nor disclose any of its or an Affiliate's books and
records not relating to the provision of Cable Service in the Town. If the Licensee believes that
the requested information is proprietary or confidential, the Licensee shall provide the following
information to the Issuing Authority: (i) specific identification of the information; (ii) a
statement attesting to the reason(s) the Licensee believes the information is confidential; and(iii)
a statement that the documents are available at the Licensee's designated offices for inspection
by the Issuing Authority. The Issuing Authority shall take reasonable steps consistent with
applicable law to protect the proprietary and confidential nature of any books, records, maps,
plans or other documents requested by the Issuing Authority that are provided pursuant to this
Renewal License to the extent they are designated as such by the Licensee. The Licensee shall
not be required to provide Subscriber information in violation of Section 631 of the
Communications Act, 47 U.S.C. § 551.
25
8.2. Records Required: The Licensee shall at all times maintain:
8.2.1. Records of all written Complaints for a period of three (3) years
after receipt by the Licensee.
8.2.2. Records of outages for a period of three (3) years after
occurrence, indicating date, duration, area, and the number of Subscribers affected, type of
outage, and cause;
8.2.3. Records of service calls for repair and maintenance for a period
of three (3) years after resolution by the Licensee, 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 resolved;
8.2.4. Records of installation/reconnection and requests for service
extension for a period of three (3) years after the request was fulfilled by the Licensee, indicating
the date of request, date of acknowledgment, and the date and time service was extended; and
8.2.5. A map showing the area of coverage for the provisioning of
Cable Services.
8.3. Dual Filings: Upon written request of the Issuing Authority, the Licensee
shall provide a copy of any documents or forms filed by the Licensee with the FCC and/or the
DTC that materially pertain to the Licensee's Cable System in the Town.
8.4. Proof of Performance Tests: Upon written request of the Issuing
Authority, the Licensee shall provide a copy of proof of performance tests required by applicable
law.
8.5. Annual Performance Review: The Issuing Authority or its designee may,
at its discretion but not more than once per twelve-month period, hold a performance evaluation
session. The purpose of such evaluation session shall be to review the Licensee's compliance
with the terms and conditions of this Renewal License. The Issuing Authority shall provide the
Licensee with thirty (30) days advance written notice of such evaluation session. The Issuing
Authority shall provide the Licensee with a written report with respect to the Licensee's
compliance within sixty(60)days after the conclusion of such evaluation session.
8.6. Quality of Service: If there exists credible evidence which, in the
reasonable judgment of the Issuing Authority, casts doubt upon the reliability or technical quality
of the Licensee's Cable Services in the Town, then, after notice to the Licensee and an
opportunity to cure, the Issuing Authority shall have the right to require the Licensee to test,
analyze and report in writing on the performance of the Cable System.
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9. INSURANCE AND INDEMNIFICATION
9.1. Insurance:
9.1.1. The Licensee shall maintain in full force and effect, at its own cost
and expense, during the term of this Renewal License,the following insurance coverage:
9.1.1.1. Commercial General Liability Insurance in the amount of
five million dollars ($5,000,000) per occurrence for property damage and bodily injury. Such
insurance shall cover the construction, operation and maintenance of the Cable System, and the
conduct of the Licensee's Cable Service business in the Town.
9.1.1.2. Automobile Liability Insurance in the amount of one
million dollars ($1,000,000) combined single limit each accident for bodily injury and property
damage coverage.
9.1.1.3. Workers' Compensation Insurance meeting the statutory
requirements of the Commonwealth of Massachusetts and Employers' Liability Insurance in the
following amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by
Disease-each employee: $100,000; $500,000 disease-policy limit.
9.1.2. The Town shall be included as an additional insured as their
interests may appear under this Renewal License on the Commercial General Liability Insurance
and Automobile Liability Insurance required herein.
9.1.3. Upon receipt of notice from its insurer(s) the Licensee shall provide
the Issuing Authority with thirty (30) days' prior written notice of cancellation of any required
coverage.
9.1.4. Each of the required insurance policies shall be with insurers
qualified to do business in the State of Massachusetts, with an A.M. Best Financial Strength
rating of A- or better.
9.1.5. Upon written request, the Licensee shall deliver to the Issuing
Authority Certificates of Insurance showing evidence of the required coverage.
9.2. Indemnification:
9.2.1. The Licensee shall, at its sole cost and expense, indemnify and
hold harmless the Issuing Authority, the Town, its officials, boards, commissions, committees,
agents and/or employees against all claims for damage, including without limitation damage to
Persons or property, real and personal, due to the actions of the Licensee, its employees, officers
or agents arising out of the installation, maintenance and/or operation of the Cable System under
this Renewal License. Indemnified expenses shall include all reasonable attorneys' fees and costs
incurred by the Town up to such time that the Licensee assumes defense of any action hereunder.
The Issuing Authority shall give the Licensee written notice of its obligation to indemnify and
defend the Issuing Authority within ten (10) business days of receipt of a claim or action
pursuant to this section.
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9.2.2. With respect to the Licensee's indemnification obligations set forth
in Section 9.2.1, the Licensee shall, at its own expense, provide the defense of any claims
brought against the Town by selecting counsel of the Licensee's choice to defend the claim,
subject to the consent of the Issuing Authority, which shall not unreasonably be withheld.
Nothing herein shall be deemed to prevent the Issuing Authority from cooperating with the
Licensee and participating in the defense of any litigation by its own counsel at its own cost and
expense, provided however, that after consultation with the Issuing Authority, the Licensee shall
have the right to defend, settle or compromise any claim or action arising hereunder, and the
Licensee shall have the authority to decide the appropriateness and the amount of any such
settlement. In the event that the terms of any such settlement includes the release of the Town
and the Town does not consent to the terms of any such settlement or compromise, the Licensee
shall not settle the claim or action but its obligation to indemnify the Town shall in no event
exceed the amount of such settlement.
9.3. Performance Bond. The Licensee shall maintain, without charge to the
Town, throughout the term of the Renewal License a faithful performance bond running to the
Town, with good and sufficient surety licensed to do business in the State in the sum of seventy
five thousand dollars ($75,000). Said bond shall be conditioned upon the faithful performance
and discharge of all of the obligations imposed by this Renewal License. The performance bond
shall be effective throughout the term of this Renewal License and shall be conditioned that in
the event that the Licensee shall fail to comply with any one or more provisions of this Renewal
License, or to comply with any order, permit or direction of any department, agency,
commission, board, division or office of the Town having jurisdiction over its acts, or to pay any
claims, liens or taxes due the Town which arise by reason of the construction, upgrade,
maintenance and/or operation of the Cable System, the Town shall recover from the surety of
such bond all damages suffered by the Town as a result thereof, pursuant to Article 11 below.
Said bond shall be a continuing obligation of this Renewal License, and thereafter until the
Licensee has satisfied all of its obligations to the Town that may have arisen from the grant of
the Renewal License or from the exercise of any privilege herein granted. In the event that a
performance bond provided pursuant to this Renewal License is not renewed or cancelled, the
Licensee shall provide a new performance bond pursuant to this Section 9.3 within thirty (30)
days of such failure to renew or cancellation. Neither cancellation, nor termination nor refusal
by the surety to extend the bond, nor the inability of the Licensee to file a replacement bond or
replacement security for its obligations under this Renewal License, shall constitute a loss to the
Town recoverable under the bond. Neither this section, any bond accepted pursuant thereto, or
any damages recovered thereunder shall limit the liability of the Licensee under the Renewal
License. Recourse by the Town of remedies available under this Section 9.3 shall not be
exclusive of other lawful remedies available to the Town at law and equity. Said bond shall be
substantially in the form of Exhibit C attached hereto.
10. RENEWAL 4F LICENSE
The Issuing Authority and the Licensee agree that any proceedings undertaken by
the Town that relate to the renewal of this Renewal License shall be governed by and comply
with the provisions of Section 626 of the Communications Act, 47 U.S.C. § 546, and M.G.L.
Chapter 166A. The Town shall notify the Licensee of any ascertainment proceedings conducted
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pursuant to Section 626 of the Communications Act, and shall provide the Licensee with a copy
of the record of such proceeding.
11. ENFORCEMENT AND TERMINATION OF LICENSE
11.1. Notice of Violation: If at any time the Issuing Authority believes that the
Licensee has not complied with the terms of this Renewal License, the Issuing Authority shall
informally discuss the matter with the Licensee, however the Issuing Authority reserves the right
to inform the Licensee of such non-compliance in writing prior to informal discussions. If such
informal discussions do not lead to resolution of the problem in a reasonable time, the Issuing
Authority shall then notify Licensee in writing of the exact nature of the alleged noncompliance
(for purposes of this Article, the"Noncompliance Notice").
11.2. The Licensee's Right to Cure or Respond: The Licensee shall have thirty
(30) days from receipt of the Noncompliance Notice to: (i) respond in writing to the Issuing
Authority, if the Licensee contests (in whole or in part) the assertion of noncompliance; (ii) cure
such noncompliance; or(iii) in the event that, by its nature, such noncompliance cannot be cured
within such thirty (30) day period, initiate reasonable steps to remedy such noncompliance,
continue such efforts until said noncompliance is cured, and notify the Issuing Authority at no
more than twenty-one (2 1) day intervals as to the Licensee's efforts and progress to remedy such
noncompliance. Upon a jointly agreed upon cure of any noncompliance by the Issuing Authority
and the Licensee, the Issuing Authority shall provide the Licensee with written confirmation that
such cure has been effected.
11.3. Public .Dearing: In the event that the Licensee fails to respond to the
Noncompliance Notice pursuant to the procedures set forth in Section 11.2 above, and if the
Issuing Authority seeks to continue its investigation into the alleged noncompliance, then the
Issuing Authority shall schedule a public hearing. The Issuing Authority shall provide the
Licensee at least thirty (30) days prior written notice of such public hearing, which will specify
the time, place and purpose of such public hearing and whether revocation of this Renewal
License is a possible consequence. At any designated public hearing where revocation of this
Renewal License is not a possible consequence, the Licensee shall be provided a fair
opportunity for full participation, including the right to be represented by legal counsel and to
introduce relevant evidence. At any designated public hearing where revocation of this
Renewal License is a possible consequence, the Licensee shall be provided a fair opportunity
for full participation, including the right to be represented by legal counsel and to introduce
relevant evidence, and shall also have the right to require the production of evidence, to compel
the relevant testimony of the officials, agents, employees or consultants of the Issuing
Authority, to compel the testimony of other persons as permitted by law, and to question and/or
cross examine witnesses. A complete record shall be made of such hearing. Within thirty (30)
days of the close of the hearing, the Issuing Authority shall issue a written determination of its
findings.
11.4. Enforcement: In the event the Issuing Authority, after the public hearing
set forth in Section 11.3 above, determines that the Licensee is in default of any provision of this
Renewal License, the Issuing Authority may:
29
11.4.1. Seek specific performance of any provision, which reasonably
lends itself to such remedy, as an alternative to damages;
11.4.2. Commence an action at law for monetary damages or seek other
equitable relief;
11.4.3. Assess liquidated damages in accordance with the schedule set
forth in Section 11.6 below;
11.4.4. Submit a claim against an appropriate part of the performance
bond pursuant to Section 9.3 above;
11.4.5. In the case of a substantial noncompliance of a material provision
of this Renewal License, seek to revoke this Renewal License in accordance with Section 11.5;
or
11.4.6. Invoke any other lawful remedy available to the Town.
11.5. Revocation: In the event that the Issuing Authority determines that it will
revoke this Renewal License pursuant to Section 11.4 above, the Licensee may appeal such
written determination of the Issuing Authority to an appropriate court or to the Cable Division,
which shall have the power to review the decision of the Issuing Authority consistent with
applicable law and regulation. The Licensee shall be entitled to such relief as the court finds
appropriate. Such appeal must be taken within sixty (60) days of the Licensee's receipt of the
written determination of the Issuing Authority. The Issuing Authority may, at its sole discretion,
take any lawful action that it deems appropriate to enforce the Issuing Authority's rights under
this Renewal License in lieu of revocation of this Renewal License.
11.6. Liquidated Damages: For the violation of any of the following provisions
of this Renewal License, liquidated damages shall be paid by the Licensee to the Issuing
Authority. Any such liquidated damages shall be assessed as of the date that the Licensee
received written notice of the provision or provisions which the Issuing Authority believes are in
default, provided that the Issuing Authority has made a determination of default in accordance
with the procedures set forth in Sections 11.1 through 11.4 above. On an annual basis from the
Effective Date, the Licensee shall not be liable for liquidated damages that exceed thirty
thousand dollars ($30,000). The liquidated damages shall be assessed as follows:
(1) For failure to obtain the advance written approval of the Issuing
Authority for any transfer of this Renewal License in accordance with Section 2.12 herein, Three
Hundred Dollars ($300.00)per day, for each day that such non-compliance continues;
(2) For failure to comply with the provisions of Section 5.1 herein (PEG
Access Channels), Three Hundred Dollars ($300.00) per day, for each day that such non-
compliance continues; and
(3) For failure to comply with the customer service standards in
accordance with Section 7 herein, Three Hundred Dollars ($300.00) per day, for each day that
such non-compliance continues.
30
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Such liquidated damages shall not be a limitation upon any other provisions of this
Final License and applicable law, including revocation, or any other statutorily or judicially
imposed penalties or remedies; provided, however, that in the event that the Issuing Authority
collects liquidated damages for a specific breach for a specific period of time, pursuant to Section
11.6 above, the collection of such liquidated damages shall be deemed to be the exclusive remedy
for said specific breach for such specific period of time only. Each of the above-mentioned cases of
non-compliance shall result in damage to the Town, its residents, businesses and institutions,
compensation for which will be difficult to ascertain. The Licensee agrees that the liquidated
damages in the amounts set forth above are fair and reasonable compensation for such damage. The
Licensee agrees that said foregoing amounts are liquidated damages,not a penalty or forfeiture, and
are within one or more exclusions to the term "franchise fee" provided by Section 622(g)(2)(A)-(D)
of the Communications Act.
12. MISCELLANEOUS PROVISIONS
12.1. Actions of Parties: In any action by the Town or the Licensee that is taken
pursuant to the terms of this Renewal License, such party shall act in a reasonable, expeditious,
and timely manner. Furthermore, in any instance where approval or consent is required by either
party under the terms hereof, such approval or consent shall not be unreasonably withheld,
delayed or conditioned.
12.2. Jurisdiction: Jurisdiction and venue over any dispute, action or suit
arising out of this Renewal License shall be in a federal or State court of appropriate venue and
subject matter jurisdiction located in the State, and the parties hereby agree to be subject to the
personal jurisdiction of said court for the resolution of any such dispute.
12.3. Binding Acceptance: This Renewal License shall bind and benefit the
parties hereto and their respective receivers,trustees, successors and assigns.
12.4. Preemption: In the event that federal or State law, rules, or regulations
preempt a provision or limit the enforceability of a provision of this Renewal License, such
provision shall be read to be preempted to the extent and for the time, but only to the extent and
for the time, required by law. In the event such federal or State law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof
that had been preempted is no longer preempted, such provision shall thereupon return to full
force and effect, and shall thereafter be binding on the parties hereto, without the requirement of
further action on the part of the Issuing Authority.
12.5. Force Majeure: If by reason of Force Majeure, either party is unable in
whole or in part to carry out its obligations hereunder, said party shall not be held in violation or
default during the continuance of such inability.
12.6. Acts or Omissions ofAffiliates: During the term of this Renewal License,
the Licensee shall be liable for the acts or omissions of its Affiliates to the extent arising out of
any such Affiliate's operation of the Cable System to provide Cable Services in the Town.
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12.7. Delivery of Payments: The Licensee may use electronic funds transfer to
make any payments to the Town required under this Renewal License.
12.8. Warranties: Each party hereto warrants, represents and acknowledges to
the other party that, as of the Effective Date, such party has the requisite power and authority
under applicable law and its organizational documents, if any, and is authorized and has secured all
consents which are required to be obtained as of the Effective Date, to enter into and be legally
bound by the terms of this Renewal License.
12.9. Notices: Unless otherwise expressly stated herein, notices required under
this Renewal License shall be mailed first class, postage prepaid, to the addressees below. Each
party may change its designee by providing written notice to the other party.
12.9.1. Notices to the Licensee shall be mailed to:
Verizon New England Inc.
6 Bowdoin Square
10th Floor
Boston, MA 02114
Attention: Niall Connors, Franchise Service Manager
12.9.2. with a copy to:
Verizon
1300 1 St. NW
Suite 500 East
Washington,DC 20005
Attention: Tonya Rutherford, VP and Deputy General Counsel
12.9.3. Notices to the Issuing Authority shall be mailed to:
Office of the Select Board
Town of Lexington
Town Office Building
1625 Massachusetts Avenue, Lexington MA 02421
12.9.4. with a copy to Town Counsel:
Anderson&Krieger, LLP
50 Milk Street,21st Floor
Boston, MA 02109
Attention: William Lahey, Esquire
12.10. Entire Agreement: This Renewal License and the Exhibits hereto
constitute the entire agreement between the Licensee and the Issuing Authority, and it supersedes
all prior or contemporaneous agreements, representations or understandings (written or oral) of
32
the parties regarding the subject matter hereof and can be amended or modified only by a written
instrument executed by both parties.
12.11. Captions: The captions and headings of articles and sections throughout
this Renewal License are intended solely to facilitate reading and reference to the sections and
provisions of this Renewal License. Such captions shall not affect the meaning or interpretation
of this Renewal License.
12.12. Severability: If any section, subsection, sentence, paragraph, term, or
provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of
competent jurisdiction or by any State or federal regulatory authority having jurisdiction thereof,
such determination shall have no effect on the validity of any other section, subsection, sentence,
paragraph, term or provision hereof, all of which will remain in full force and effect for the term
of this Renewal License.
12.13. Recitals: The recitals set forth in this Renewal License are incorporated
into the body of this Renewal License as if they had been originally set forth herein.
12.14. No Recourse Against Issuing Authority: Pursuant to Section 635A(a) of
the Communications Act (47 U.S.C. § 555(a)), the Licensee shall have no recourse against the
Issuing Authority, the Town and/or its officials, members, employees or agents other than
injunctive relief or declaratory relief, arising from the regulation of Cable Service or from a
decision of approval or disapproval with respect to a grant, renewal, transfer, or amendment of
this Renewal License
12.15. FTTP Network Transfer Prohibition: Under no circumstances including,
without limitation, upon expiration, revocation, termination, denial of renewal of this Renewal
License or any other action to forbid or disallow the Licensee from providing Cable Services,
shall the Licensee or its assignees be required to sell any right, title, interest, use or control of
any portion of the Licensee's FTTP Network including, without limitation,the Cable System and
any capacity used for Cable Service or otherwise, to the Town or any third party. The Licensee
shall not be required to remove the FTTP Network or to relocate the FTTP Network or any
portion thereof as a result of revocation, expiration, termination, denial of renewal or any other
action to forbid or disallow the Licensee from providing Cable Services. This provision is not
intended to contravene leased access requirements under Title VI or the PEG requirements set
out in this Renewal License.
12.16. Interpretation: The Issuing Authority and the Licensee each acknowledge
that it has received independent legal advice in entering into this Renewal License. In the event
that a dispute arises over the meaning or application of any term(s) of this Renewal License, such
term(s) shall not be construed by the reference to any doctrine calling for ambiguities to be
construed against the drafter of the Renewal License.
12.17. No Third Party Beneficiaries: The provisions of this Renewal License are
for the benefit of the Licensee and the Issuing Authority and not for any other Person.
12.18. Counterparts: This License may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
33
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instrument. Further, this Renewal License may be executed by facsimile, email, electronic
signature or other electronic means, and so executed shall have the full force and legal effect as
an executed original of this Renewal License.
SIGNATURE PAGE FOLLOWS
34
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AGREED TO THIS TRAY OF � 2 22.
TOWN OF LEXINGTON VER.IZON NEW ENGLAND INC.
By its Select Board:
By:
WillHai, Chair Kevin r`+'I. Service, eniar'�ice
President of Operations—Consumer and
Mass Business Markets
Douglas M. Lucente, Vice-Chair
is s P to .
'gizannUi. Barry
Mark D. Sandeen
Approved as to Farm;
J'o d'
erizan Latin Dep ent
Signature Page
EXHIBITS
EXHIBIT A-PUBLIC BUILDINGS TO BE PROVIDED CABLE SERVICE
EXHIBIT B-OPERATING FUNDING GROSS REVENUES REPORTING FORM
EXHIBIT C-PERFORMANCE BOND
EXHIBIT A
PUBLIC BUILDINGS TO BE PROVIDED CABLE SERVICE
Pursuant to Section 3.3 herein, the following public buildings and schools shall receive one
Cable Service drop, outlet and monthly Basic Service:
(1) Stone Building: 735 Massachusetts Avenue
(2) East Lexington Fire Station: 1006 Massachusetts Avenue
(3)Police Station: 1575 Massachusetts Avenue
(4) Isaac Harris Cary Memorial Building: 1605 Massachusetts Avenue
(5) Town Office Building: 1625 Massachusetts Avenue
(6) Cary Memorial Library: 1874 Massachusetts Avenue
(7) Fire Headquarters: 45 Bedford Street
(8) Samuel Hadley Public Services Building: 201 Bedford Street
(9) DPW Recycling Area: 60 Hartwell Avenue
(10) Westview Cemetery: 520 Bedford Street
(11)North Lexington Pump Station: Bedford Street/Route 128
(12) Visitors Center: 1875 Massachusetts Avenue
(13)PEG Access Studio: Kline Hall, 1001 Main Campus Drive
(14) Hancock Church: 1912 Massachusetts Avenue
(15) Hayden Recreation Center: 24 Lincoln Street
(16) Hayden Recreation Center Ice Facility: 10 Lincoln Street
(17)National Guard Armory: 459 Bedford Street
(18) Hosmer House: 1557 Massachusetts Avenue
(19) Animal Shelter: 72 Westview Street
(20) Lexington Community Center: 39 Marrett Road
(21) Town Building (Former Temporary Fire HQ): 173 Bedford Street
(22) Irving H. Mabee Town Pool Complex: 80 Worthen Road
(23) School Administration Building: 146 Maple Street
(24) Clarke School: 17 Stedman Road
(25) Diamond Middle School: 99 Hancock Street
(26) Bowman School: 9 Phillips Road
(27) Bridge School: 55 Middleby Road
(28) Estabrook School: 117 Grove Street
(29) Fiske Elementary School: 55 Adams Street
(30) Harrington Elementary School: 328 Lowell Street
(3 1) Minuteman Regional Vocational School: 758 Marrett Road
(32) Lexington High School:
Main Building/Arts & Humanities: 251 Waltham Street
Science Building: 251 Waltham Street
World Languages Building: 251 Waltham Street
Math Building: 251 Waltham Street
(33) Hastings School: 7 Crosby Road
(34) Lexington Children's Place: 20 Pelham Road
EXHIBIT B
GROSS REVENUES PEG ACCESS/CABLE-RELATED"PORTING FORM
PEG Access/Cable-Related Report 1st Quarter [YEAR]
Town of Lexington
Verizon—JBA
MA
PEG AccesslCable-
Related Fee Rate: 5%
MONTH MONTH MONTH Quarter Total
Monthly Recurring Cable
Service Charges (e.g.
Basic, Enhanced Basic,
Premium and Equipment
Rental)
Usage Based Charges
(e.g. PayPer View,
Installation)
-1- ....-...............- ......................................................... ............................................................................................................................................. ......................................... .............................................. ............. .................
Advertising
Home Shopping
me
Late Payment
.............................
............................................................ ....................................................... .................. ..............-.............. .............. ...............................---..............................................
Other Misc. (Leased
Access&Other Misc.)
License Fee Billed
.......................... ........................................................................................................................ .......................... ................ ........ ..........................................
PEG Fee Billed
Less:
.... ..................... ......................................................................................-..........11.............................................................................. ....................................................
Bad Debt
Total Receipts subject to
PEG Access/Cable-
Related Fee Calculation
.............................................................................--l",.................................................... ....................... .......................... ......................................................................-.1................................................................. .............................................................
PEG Access/Cable-
Related Support
Funding Before
Adjustment
Adjustment
......................................- .......................................................... ......................................................................................... ...................................................................................... .................................
PEG Access/Cable-
Related Support
Funding
EXHIBIT C
FORM OF PERFORMANCE BOND
Franchise Bond
Bond No.
KNOW ALL MEN BY THESE PRESENTS: That(name & address) (hereinafter
called the Principal), and(name and address)(hereinafter called the Surety), a corporation duly
organized under the laws of the State of(state), are held and firmly bound unto (name& address)
(hereinafter called the Obligee), in the full and just sum of Seventy Five Thousand Dollars
($75,000), the payment of which suerators,
and truly to be made,the said Principal and Surety
bind themselves,their heirs, admi xecutors, and assigns,jointly and severally, firmly
by these presents.
WHEREAS,the Pri ct al and Obligee hav entered into a License Agreement dated
which is hereby rred to and made a hereof.
WHERE A said Principal is r fired to orm certai obligations under said Agreement.
WHEREAS,th bl' a has agre accept this bond security against default by Principal
of performance of its obligatio nder aid Agreern during the time period this bond is in
effect.
NOW,THEREFORE,THE CONI ,b= ION OF THIS I3IG ION IS SUCH that if the
Principal shall perform its obligatio under said ment, n this obligation shall be void,
otherwise to remain in full force d effect,,unless otherwi terminated, cancelled or expired as
hereinafter provided.
PROVIDED HOWEVER,that this bond is exec d subject t following x ss provisions
and conditions:
y the al
In the event of default b ci i ee sha de 'ver to Surety:�ritten
1. p , g y
statement of the details of such default w thin 3 6 ays after theligee shall learn o e same,
such notice to be delivered by certified mai address of said Surety as stated h in.
2. This Bond shall be effective , 20_, and shal main in full force and
effect thereafter for a period of one year and will automatically exte for additional one year
periods from the expiry date hereof, or any future expiration da nless the Surety provides to
the Obligee not less than sixty(60) days advance written no a of its intent not to renew this
Bond or unless the Bond is earlier canceled pursuant to following. This Bond may be
canceled at any time upon sixty(60)days advance written notice from the Surety to the Obligee.
3. Neither cancellation,termination nor refusal by Surety to extend this bond,nor
inability of Principal to file a replacement bond or replacement security for its obligations under
said Agreement, shall constitute a loss to the Obligee recoverable under this bond.
4. No claim, action, suit or proceeding shall be instituted against this bond unless same
be brought or instituted and process served within one year after termination or cancellation of
this bond.
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5. No right of action shall accrue on this bond for the use of any person, corporation or
entity other than the Obligee named herein or the heirs, executors, administrators or successors
of the Obligee.
6. The aggregate liability of the surety is limited to the penal sum stated herein
regardless of the number of years this bond remains in force or the amount or number of claims
brought against this bond.
7. This bond is and shall be construed to be strictly one of suretyship only. If any
conflict or inconsistency exists between the Surety's obligations as described in this bond and as
may be described in any underlying agreement,permit, document or contract to which this bond
is related, then the terms of this bond shall supersede and prevail in all respects.
This bond shall not bind the Surety unless it is accepted by the Obligee by signing below.
IN WITNESS WHEREOF, the above bounded Principal and Surety have hereunto signed and
sealed this bond effective this day of , 2022.
Principal Surety
By: By:
Attorney-in-Fact
Accepted by Obligee:
(Signature &date above-Print Name, Title below)
6