(A) Designated access providers.
(1) The city shall have the sole and exclusive responsibility for identifying the designated access providers, including itself, for access purposes, to control and manage the use of any or all access facilities provided by grantee under this franchise. As used in this section, such "access facilities" includes the channels, services, facilities, equipment, technical components and/or financial support provided under this franchise, which are used or useable by and for public access, educational access, and government access ("PEG" or "PEG Access").
(2) Grantee shall cooperate with the city in the city's efforts to provide access programming but will not be responsible or liable for any damages resulting from a claim in connection with the programming placed on the access channels by the designated access provider.
(B) Channel capacity and use.
(1) As of the effective date grantee shall provide standard definition access channels and high definition access channels for use by the city or its designated access providers, as set forth in § 13-5-3-9(B)(3) and (4).
(2) Grantee shall have the right to temporarily use any channel or portion thereof which is allocated under this subsection for public, educational, or governmental access use, within 60 days after a written request for such use is submitted to the city, if such channel is not "fully utilized" as defined herein. A channel shall be considered fully utilized if substantially unduplicated programming is delivered over it more than an average of 38 hours per week over a six-month period. Programming that is repeated on an access channel up to two times per day shall be considered "unduplicated programming." Character generated programming shall be included for purposes of this subsection but may be counted towards the total average hours only with respect to one channel provided to the city. If a channel allocated for public, educational, or governmental access use will be used by grantee in accordance with the terms of this subsection, the institution to which the channel has been allocated shall have the right to require the return of the channel or portion thereof. City shall request return of such channel space by delivering written notice to grantee stating that the institution is prepared to fully utilize the channel or portion thereof in accordance with this subsection. In such event, the channel or portion thereof shall be returned to such institution within 60 days after receipt by grantee of such written notice.
(3) Standard definition ("SD") digital access channels.
(a) Grantee shall continue to provide four activated downstream channels for PEG access use in a standard definition ("SD") digital format in grantee's Basic Service ("SD Access Channel") until such time as the city activates additional access channels as set forth in § 13-5-3-9(B)(4). Grantee shall carry all components of the SD access channel signals provided by a designated access provider including but not limited to closed captioning, stereo audio and other elements associated with the programming. A designated access provider shall be responsible for providing the SD access channel signal in an SD or high definition ("HD") format to the demarcation point at the designated point of origination for the SD access channel, and grantee shall be responsible for downconverting any HD signal to SD for distribution on the cable system. Grantee shall transport and distribute the SD access channel signal on its cable system and shall not unreasonably discriminate against SD access channels with respect to accessibility, functionality and the application of any applicable FCC Rules & Regulations, including without limitation Subpart K channel signal standards.
(b) With respect to signal quality, grantee shall not be required to carry a SD access channel in a higher quality format than that of the SD access channel signal delivered to grantee, but grantee shall distribute the SD access channel signal without degradation. Upon reasonable written request by a designated access provider, grantee shall verify signal delivery to subscribers with the designated access provider, consistent with the requirements of this § 13-5-3-9(B)(3).
(c) Grantee shall be responsible for costs associated with the transmission of SD access signals on its side of the demarcation point which, for the purposes of this § 13-5-3-9(B)(3)(c), shall mean up to and including the modulator where the city signal is converted into a format to be transmitted over a fiber connection to grantee. The city or designated access provider shall be responsible for costs associated with SD access signal transmission on its side of the demarcation point .
(d) SD access channels may require subscribers to buy or lease special equipment, available to all subscribers, and subscribe to those tiers of cable service upon which SD channels are made available. Grantee is not required to provide free SD equipment to subscribers, including complimentary government and educational accounts, nor modify its equipment or pricing policies in any manner.
(4) High definition ("HD") digital access channels.
(a) Within 120 days of the effective date and upon written request from the city, grantee shall activate on its cable system two High Definition ("HD") digital format PEG access channels ("HD access channel"), for which the city shall provide access channel signals in HD format to the demarcation point at the designated point of origination for the access channel.
(b) After the first anniversary of the effective date, and if the city returns one SD access channel provided under § 13-5-3-9(B)(3), and with at least 120 days' written notice to grantee, grantee shall provide on its cable system one additional HD access channel for PEG access use.
(c) Activation of the one HD access channel shall only occur after the following conditions are satisfied with respect to each of the HD access channels:
(i) The city shall, in its written notice to grantee as provided for in this subsection, confirm that it or its designated access provider has the capabilities to produce, has been producing and will produce programming in an HD format for the newly activated HD access channel and,
(ii) There will be a minimum of five hours per-day, five days per-week of HD PEG programming available for the HD access channel. For the purposes of this subsection, character-generated programming (i.e., community bulletin boards) shall not satisfy, in whole or in part, this programming require ment.
(d) The city shall be responsible for providing the HD access channel signals in an HD digital format to the demarcation point at the designated point of origination for the HD access channel. For purposes of this franchise, an HD signal refers to a television signal delivering picture resolution of either 720p or 1080i, or such other resolution in this same range that grantee utilizes for other similar non-sport, non-movie programming channels on the cable system, whichever is greater.
(e) Grantee shall transport and distribute the HD access channels signal on its cable system and shall not unreasonably discriminate against the HD access channels with respect to accessibility, functionality and to the application of any applicable FCC Rules & Regulations, including without limitation Subpart K channel signal standards. With respect to signal quality, grantee shall not be required to carry an HD access channel in a higher quality format than that of the HD access channel signal delivered to grantee, but grantee shall distribute the HD access channel signal without degradation. Grantee shall carry all components of the HD access channel signals provided by the designated access provider including but not limited to closed captioning, stereo audio and other elements associated with the programming. Upon reasonable written request by the city, grantee shall verify signal delivery to subscribers with the city, consistent with the requirements of this § 13-5-3-9 (B)(4).
(f) HD access channels may require subscribers to buy or lease special equipment, available to all subscribers, and subscribe to those tiers of cable service, upon which HD channels are made available. Grantee is not required to provide free HD equipment to subscribers, including complimentary government and educational accounts, nor modify its equipment or pricing policies in any manner.
(g) The city or any designated access provider is responsible for acquiring all equipment necessary to produce programming in HD.
(h) Grantee shall cooperate with the city to procure and provide, at city's cost, all necessary transmission equipment from the designated access provider channel origination point, at grantee's headend and through grantee's distribution system, in order to deliver the HD access channel. The city shall be responsible for the costs of all transmission equipment, including HD modulator and demodulator and encoder or decoder equipment, and multiplex equipment, required in order for grantee to receive and distribute the HD access channel signal, or for the cost of any resulting upgrades to the video return line. The city and grantee agree that such expense of acquiring and installing the transmission equipment or upgrades to the video return line qualifies as a capital cost for PEG facilities within the meaning of the Cable Act 47 U.S.C.A. Section 542(g)(20)(C), and therefore is an appropriate use of revenues derived from those PEG capital fees provided for in this franchise.
(5) Grantee shall simultaneously carry the two HD access channels provided for in § 13-5-3-9(B)(4)(a) in high definition format on the cable system, in addition to simultaneously carrying in standard definition format the four SD access channels provided pursuant to § 13-5-3-9(B)(3). The total number of access channels shall be four SD access channels and two HD access channels. At such time as the city returns one SD access channel and grantee activates the third HD access channel in accordance with § 13-5-3-9(B)(4)(b), the number of SD access channels shall be reduced to three and the number of HD access channels shall be three and the total number of access channels shall be six - three SD access channels and three HD access channels.
(6) There shall be no restriction on grantee's technology used to deploy and deliver SD or HD signals so long as the requirements of the franchise are otherwise met. Grantee may implement HD carriage of the PEG channels in any manner (including selection of compression, utilization of IP, and other processing characteristics) that produces a signal quality for the subscriber that is reasonably comparable and functionally equivalent to similar commercial HD channels carried on the cable system. In the event the city believes that grantee fails to meet this standard, the city will notify grantee of such concern, and grantee will respond to any complaints in a timely manner.
(7) At such time as grantee provides 98% of its video programming content on the cable system exclusively in HD, all of the existing SD access channels will be converted to HD access channels. Prior to the time that grantee provides 98% of its video programming content on the cable system exclusively in HD, the parties may from time to time discuss transitioning SD access channels access to HD access channels, and such transition may occur if in grantee's discretion such action is technically and commercially feasible.
(C) Access channel assignment. Grantee will use reasonable efforts to minimize the movement of SD and HD access channel assignments. In addition, grantee will make reasonable efforts to locate the HD access channel provided pursuant to § 13-5-3-9(B)(4) in a location on its HD channel lineup that is easily accessible to subscribers.
(D) Relocation of access channels. Grantee shall provide city a minimum of 60 days’ notice and use its best efforts to provide 120 days' notice prior to the time PEG access channel designations are changed.
(E) Web-based video on demand and streaming.
(1) Grantee shall provide at no cost to the city, at 400 Marquette NW, 1st Floor, Room 106, Albuquerque, a business class broadband connection, broadband service and all necessary hardware to enable the city's delivery of web-based PEG content. If during the term of this franchise the city moves its location and such new location does not have the capacity to connect and receive the broadband service described in this § 13-5-3-9(E)(1), the cost of upgrading the network to enable such service shall be incurred by the city. The broadband connection provided herein shall be used exclusively for web-based on demand access programming and/or web-based video streaming of access content. Within 90 days after written request of the city, grantee shall additionally provide a one-time grant of funding, in an amount not to exceed $25,000, which the city shall use to acquire and/or for replacement costs for a video on-demand server for facilitating the web-based access programming described in this § 13-5-3-9(E).
(2) The city's designated access provider(s) may provide web-based video on-demand programming on line; provided, however, that such designated access providers shall be responsible for its own costs related to a video on-demand server, broadband connection and service and any other associated equipment.
(3) Any costs incurred by grantee in facilitating the web-based on-demand access programming described in this § 13-5-3-9(E) may be recovered from subscribers by grantee in accordance with applicable law.
(F) Support for PEG access and network costs.
(1) During the term of this franchise agreement, grantee shall provide $0.62 per month per residential subscriber (the "PEG contribution") to be used solely for capital costs related to PEG access, including the city's institutional network connections or as may be permitted by applicable law. At the fifth anniversary of the effective date of this franchise, the city at its discretion, by ordinance or resolution after 120 days' notice and an opportunity for the grantee to be heard, may require grantee to increase the PEG contributions to $0.65 per month per residential subscriber for the remaining term of this franchise. At the eighth anniversary of the effective date of this franchise, the city at its discretion, by ordinance or resolution after 120 days' notice and an opportunity for the grantee to be heard, may require grantee to increase the PEG contributions to $0.68 per month per residential subscriber for the remaining term of this franchise.
(2) Grantee shall make PEG contribution payments quarterly, following the effective date of this franchise agreement for the preceding quarter ending March 31, June 30, September 30, and December 31. Each payment shall be due and payable no later than 45 days following the end of the quarter.
(3) The city shall have sole discretion to allocate the expenditure of such payments for any capital costs related to PEG access. The parties agree that this franchise shall provide the city discretion to utilize the PEG contribution for new internal network connections and enhancements to the city's existing network.
(4) The PEG contribution shall not be collected and remitted on:
(a) Subscribers residing in multiple dwelling units billed on a bulk-billing basis for any additional services;
(b) Subscribers and/or employees receiving cable service on a gratis or complimentary basis; and
(c) Subscribers whose accounts are written off as uncollectable or are considered bad debt.
(G) Access support not franchise fees. Grantee agrees that capital support for access costs arising from or relating to the obligations set forth in this section shall in no way modify or otherwise affect grantee's obligations to pay franchise fees to the city. Grantee agrees that although the sum of franchise fees plus the payments set forth in this section may total more than 5% of grantee's gross revenues in any 12-month period, the PEG contribution shall not be offset or otherwise credited in any way against any franchise fee payments under this franchise agreement so long as such support is used for capital access purposes, including the city's institutional network connections consistent with this franchise and federal law or as provided by applicable law.
(H) Access channels on basic service or lowest priced HD service tier. All SD access channels shall be available on the tier of service to which grantee requires all subscribers to subscribe (as of the effective date, the basic service tier), or if there is no such tier, the access channels will be made available to every subscriber without charge beyond the charge the subscriber pays for the cable services and equipment the subscriber receives. The HD access channels under this franchise agreement shall be included by grantee without limitation as part of the lowest priced tier of HD cable service upon which grantee provides HD programming content.
(I) Change in technology. In the event grantee makes any change in the cable system and related equipment and facilities or in grantee's signal delivery technology which directly or indirectly affects the signal quality or transmission of access services or programming, grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment and full training of the city's access personnel, to ensure that the capabilities of access services are not diminished or adversely affected by such change. If the city implements a new video delivery technology that is currently offered and can be accommodated on grantee's local cable system, then the same provisions above shall apply. If the city implements a new video delivery technology that is not currently offered on and/or that cannot be accommodated by grantee's local cable system, then the city shall be responsible for acquiring all necessary equipment, facilities, technical assistance, and training to deliver the signal to grantee's headend for distribution to subscribers.
(J) Technical quality. Grantee shall maintain all upstream and downstream access services and channels on its side of the demarcation point at the same level of technical quality and reliability required by this franchise agreement and all other applicable laws, rules and regulations for residential subscriber channels. Grantee shall provide routine maintenance for all transmission equipment on its side of the demarcation point, including modulators, decoders, multiplex equipment, and associated cable and equipment necessary to carry a quality signal to and from the city's facilities for the access channels provided under this franchise agreement. Grantee shall also provide, if requested in advance by the city, advice and technical expertise regarding the proper operation and maintenance of transmission equipment on the city's side of the demarcation point. The city shall be responsible for all initial and replacement costs of all HD modulator and demodulator equipment. The city shall also be responsible, at its own expense, to replace any of grantee's equipment that is damaged by the gross negligence or intentional acts of city staff. Grantee shall be responsible, at its own expense, to replace any of grantee's equipment that is damaged by the gross negligence or intentional acts of grantee's staff. The city will be responsible for the cost of repairing and/or replacing any HD PEG access transmission equipment that grantee maintains that is used exclusively for transmission of the city's and/or its designated access providers' HD access programming.
(K) Access cooperation. The city may designate any other jurisdiction which has entered into an agreement with grantee or an affiliate of grantee based upon this franchise agreement, to receive any access benefit due the city hereunder, or to share in the use of access facilities hereunder. The purpose of this section shall be to allow cooperation in the use of access and the application of any provision under this section as the city in its sole discretion deems appropriate, and grantee shall cooperate fully with, and in, any such arrangements by the city.
(L) Return lines/access origination.
(1) Grantee shall continuously maintain the two return lines previously constructed to the City Hall and the PEG access studio throughout the term of the franchise, in order to enable the distribution of access programming to residential subscribers on the access channels; provided, however, that grantee's maintenance obligations with respect to either of these locations shall cease if a location is no longer used in the future by the city to originate access programming.
(2) Grantee shall construct and maintain new fiber optic return lines to the headend from production facilities of new or relocated designated access providers delivering access programming to residential subscribers as requested in writing by the city. All actual construction costs incurred by grantee from the nearest interconnection point to the designated access provider shall be paid by the city or the designated access provider. New return lines shall be completed within one year from the request of the city or its designated access provider, or as otherwise agreed to by the parties. If an emergency situation necessitates movement of production facilities to a new location, the parties shall work together to complete the new return line as soon as reasonably possible.
(M) Access program listings in subscriber guide. To the extent the configuration of the cable system allows for detailed program listings to be included on the digital channel guide, grantee will allow the city or the designated access provider to make arrangements with the channel guide vendor to make detailed programming listings available on the guide. The city or the designated access provider will be solely responsible for providing the program information to the vendor in the format and timing required by the vendor and shall bear all costs of this guide service.