5.1 Customer Service Standards: Company shall at all times comply with the more stringent of the provisions of the customer service and consumer protection provisions of the Cable Ordinance, this Franchise Agreement, and those from time to time adopted by the FCC. This requirement is in addition to the specific provisions of subsequent sections of Part 5. The Company and City agree to review the Company's performance under this Part 5 on a semi-annual basis.
5.2 Reservation: City reserves the right by ordinance to make reasonable changes to the customer service and consumer protection matters set forth in this Part which may be allowed by future amendment or adoption of FCC regulations, including adopting ordinances stricter than or covering items not presently set forth in this Part. City agrees to meet with Company on the matters in question prior to taking such action, and to provide Company with at least forty-five (45) days prior notice of such action.
5.3 Undergrounding: For new installations, excluding locations where all utilities are underground, if a subscriber requests underground Cable Service, Company may in addition to the installation charge which would otherwise apply charge the subscriber the differential between the cost of aerial and underground installation of the Drop to the subscriber. This provision shall not apply where undergrounding is required by ordinance or policy for all utilities.
5.4 Lockout Device: Company without additional charge beyond that for a set top converter shall make available for pick up by all subscribers a device by which the subscribers can prohibit the viewing of a particular cable service during periods selected by the subscriber.
5.5 RESERVED.
5.6 RESERVED.
5.7 Notification: Company shall provide written information on at least each of the following areas at the time of installation or reinstallation of service, at least annually to all subscribers, and at any time upon request.
5.7.1 Products and services offered.
5.7.2 Prices (rates) and options for Cable Services and conditions of subscription to Cable Service. Prices shall include those for programming, equipment rental, program guides, installation, disconnection, late fees and optional services, fees, and charges charged by Company
5.7.3 Installation and service maintenance policies.
5.7.4 Instructions on how to use Cable Services, including procedures and options for pay per view and premium channels.
5.7.5 Channel positions of programming carried on the Cable System, including a listing specific to City showing the channel names and numbers actually available to subscribers in City.
5.7.6 Billing and complaint procedures, including the address and phone number of the person or position at City responsible for cable matters.
5.7.7 The Company's address and phone number for the subscriber to initially contact Company with complaints and questions.
5.7.8 Applicable privacy requirements as set forth in this Franchise Agreement, the Cable Ordinance, or otherwise provided for by the law.
5.8 Notice of Changes: Subscribers and City shall be notified of any increases in rates, or changes in Cable Services or channel positions as soon as possible in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes (and to City thirty (30) days in advance) if the change is within the control of Company and as soon as possible if not within the control of Company.
5.9 Program Guide: Upon request, Company shall provide subscribers with a periodic (e.g. -monthly) written or electronic program guide listing the specific programs available, their times and (when applicable) ratings. Company may charge a fee for this service.
5.10 Converters: Company shall make available for rental by subscribers the converter equipment necessary for subscribers (such as those with "non-cable ready" television sets) to receive the services offered by Company.
5.11 Telephone Service Standards:
5.11.1 Company shall have a local or toll-free number available for use by subscribers toll-free twenty-four (24) hours per day, seven (7) day per week.
5.11.2 Company's numbers shall be listed, with appropriate explanations, in the directory published by the local telephone company or companies and in significant private directories (Talking Directories and the like).
5.11.3 Trained Company representatives shall be available to respond to subscriber telephone inquires twenty-four (24) hours per day, seven (7) days per week.
5.11.4 Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds from when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis.
5.11.5 Under Normal Operating Conditions, the subscriber shall receive a busy signal less than three percent (3%) of the time, measured on a quarterly basis.
5.11.6 Under Normal Operating Conditions, no more than three percent (3%) of subscribers calls measured on a quarterly basis shall be abandoned.
5.12 Office/Home Delivery-Pick Up:
5.12.1 Company shall maintain either (1) the physical office described in 5.12.2 or (2) a "virtual office" consisting of (a) a toll-free telephone number which all subscribers in City can access twenty-four (24) hours per day, seven (7) days per week to register complaints or ask questions concerning Cable Service, billing matters or the Cable System, (b) one or more conveniently located bill payment offices where subscribers can pay their bills, and (c) delivery and pickup of converter boxes, remotes and similar Company-provided customer premises equipment at no charge to subscribers.
5.12.2 The Physical office of Company shall be a place where subscribers may pay their bills, return converter boxes and comparable items and receive information on Company and its services. Any such office shall be open at least 8 hours each day, Monday through Friday, to meet the needs of residents of City excepting on national holidays.
5.12.3 Company shall deliver to and pick up converter boxes, remotes, and similar customer premises equipment from subscribers. Under Normal Operating Conditions, such deliveries and pick-ups shall occur within five (5) business days of a subscriber request no less than ninety-five percent (95%) of the time, measured on a quarterly basis. A subscriber may allow the Company additional time to comply with this requirement.
5.13 Installation Standards: Under Normal Operating Conditions, installations located up to one hundred fifty (150) aerial feet from the existing distribution Cable System shall be performed within seven (7) business days after an order has been placed no less than ninety-five percent (95%) of the time, measured on a quarterly basis. The preceding requirement shall not apply to commercial subscribers, multiple dwellings served by a single Drop, or inside "wall fish" installations.
5.14 Installations/Service Calls: The following shall apply to subscribers (current or new) requesting installations or service:
5.14.1 Service calls shall be available at minimum 8:30 AM to 7:00 PM Monday through Friday and 8:30 AM to 1:30 PM on Saturday to meet the needs of resident of City. Installations shall be available at minimum 8:30 AM to 7:00 PM or dusk whichever is earlier Monday through Friday and 8:30 AM to 1:30 PM on Saturday to meet the needs of residents of City. Company shall at the subscriber's option either (1) schedule the subscriber to be the first call of the day or last call of the day on a first come, first served basis. At the Franchisee's option, it may (2) schedule the appointment for a date certain on a "call to meet" basis (for example, where the service technician finishes his/her prior task, the technician calls the subscriber and arranges to meet the subscriber shortly thereafter), or (3) establish an appointment window of no more than four (4) hours with the subscriber (or adult representative of the subscriber), or another appointment window mutually agreed upon between the subscriber and Company.
5.14.2 Company shall respond to the request for service in accordance with the option selected by the subscriber.
5.14.3 Company shall not cancel an appointment with a subscriber after 5:00 PM on the business day prior to the scheduled appointment.
5.14.4 If Company's technician is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber shall promptly be contacted. The appointment shall be rescheduled, as necessary, at a time certain which in convenient for the subscriber.
5.14.5 In the event access to the subscriber's premises is not made available to Company's technician when the technician arrives during the established appointment window, the technician shall leave written notification stating the time of arrival and requesting that Company be contacted again to establish a new appointment window.
5.14.6 Notwithstanding the foregoing, if Company's technician or service representative telephones the subscriber during or prior to the appointment window and is advised that the technician will not be given access to the subscriber's premises during the appointment window, then the technician shall not be obliged to travel to the subscriber's premises or to leave the written notification referred to above, and the burden shall again be upon the subscriber (or adult representatives of the subscriber) to contact Company to arrange for a new appointment.
5.14.7 Except as otherwise provided above, Company shall be deemed to have responded to a service or installation request under the provisions of this section when a technician begins work on the request or is advised by telephone no access will be given.
5.14.8 Under Normal Operating Conditions, Company shall meet the standards of Section 5.11 through 5.13 no less than ninety-five percent (95%) of the time, measured semi-annually.
5.15 Service Call Charges: As to Company owned and Company maintained equipment, no charge shall be made to the subscriber for any service call after the initial installation of Cable Service unless the problem giving rise to the service request can be demonstrated by Company to have been:
5.15.1 Caused by subscriber negligence, or
5.15.2 Caused by malicious destruction of cable equipment, or
5.15.3 A problem established as having been non-cable in origin.
5.16 Service Interruptions:
5.16.1 Under Normal Operating Conditions, Company shall meet the standard of Section 5.16 and 5.17 no less than ninety-five percent (95%) of the time measured on a semi-annual basis.
5.16.2 Excluding conditions beyond Company's control, Company shall begin working on a Service Interruption promptly and in no event later than twenty-four (24) hours after the interruption becomes known to Company.
5.16.3 "Service Interruption" means the loss of picture or sound on one or more cable channels, affecting one or more subscribers.
5.16.4 Excluding conditions beyond Company's control, Company shall begin working on subscriber complaints involving impairment or degradation of signal quality (other than a Service Interruption) promptly and in no event later than the next business day after the problem becomes known to Company.
5.16.5 Company shall be deemed to have begun work under the provisions of this section when a technician begins work on the problem in question.
5.17 Log of Complaints: Company shall maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in printed form, of all cable-related subscriber complaints requiring a service call or further corrective action by Company. Such log shall at a minimum list the date and time of each such complaint, identifying the subscribers (to the extent allowed by law) and describing the nature of the complaints and when and what actions were taken by Company in response thereto. The log shall be kept at Company's office in or near City for a period of at least two (2) years and shall be available for inspection during regular business hours by City upon request.
5.18 Payment Options:
5.18.1 Company shall provide all individual, residential subscribers with the option of paying for Cable Service by (1) cash, (2) check, or at a company's options (3) an automatic payment plan, where the amount of the bill is automatically deducted from a checking account designated by the subscriber.
5.19 Bills: Company shall comply with the following on Cable Service billing:
5.19.1 Bills shall be issued monthly to each subscriber with a balance due or charge of service
5.19.2 Company shall maintain records of the date and place of mailing of bills and upon request shall certify in writing to count the date of mailing of each group of bills mailed to subscribers.
5.19.3 Bills shall be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates, credits and late charges.
5.19.4 In the case of a billing dispute, Company shall respond to any complaint from a subscriber within fifteen (15) days.
5.19.5 Company shall provide City with written notice thirty (30) days in advance of any change in the form of subscriber bills, including in particular any matters that relate either to payment information, addresses, phone numbers, franchise fees, or external costs.
5.20 Refunds and Credits: Refund checks for Cable Service shall be issued promptly, but no later than either:
5.20.1 The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier.
5.20.2 Credits for Cable Service or the return of equipment shall be issued no later than the subscriber's next billing cycle following a determination that a credit is warranted.
5.21 Late Payments for Cable Service:
5.21.1 Each bill shall specify on its face in a fashion emphasizing same (such as bold face type, underlined type or a larger font): "For payments received after [date] a $ (intentionally blank late fee may be charged." No customer may be charged a late fee unless this notification requirement is complied with.
5.21.2 No late payment charges, however denominated, shall be added to a subscriber's bill less than twenty-one (21) calendar days after the mailing of the bill to the subscriber.
5.21.3 No late payment charges, however denominated, shall be added to a subscriber's bill by reason of delay in payment other than those described in this Section 5.24. All such charges shall be separately stated on the subscriber's bill and include the word "late" in the description of them.
5.21.4 Late payment charges imposed by Company upon subscribers shall be fair and shall be reasonably related to Company's cost of administering delinquent accounts.
5.21.5 Late payment charges imposed by the Company upon subscribers shall comply with all Federal, State or local laws concerning the imposition of late fees.
5.22 Disconnection:
5.22.1 Company shall only disconnect a subscriber for failure to pay if at least thirty five (35) days have elapsed after the due date for payment of the subscriber's bill and Company has provided at least ten (10) days notice separate from the monthly bill to the subscriber prior to disconnection, specifying the effective date after which Cable Services are subject to disconnection.
5.22.2 Company shall not disconnect a subscriber for failure to pay amounts that are legitimately in dispute during a billing dispute.
5.22.3 Company may disconnect a subscriber at any time if Company in good faith believes the subscriber has tampered with or abused Company's equipment, that there is a signal leakage problem (or other non-compliance with FCC rules or other standards which poses a risk to lives or property) on the subscriber's premises, or that the subscriber is or may be engaged in theft of Cable Services.
5.22.4 Company shall promptly disconnect any subscriber who so requests disconnection. No charge shall be imposed upon the subscriber for or related to disconnection of for any Cable Service beyond the date of the disconnect request (unless there is a delay in returning Company equipment). If the subscriber fails to specify an effective date for disconnection, the effective date of disconnect shall be deemed to be the 7th business day following the date the disconnect request is received by Company.
5.22.5 The term "disconnect" shall include customers who elect to cease receiving Cable Service from Company and to receive Cable Services or other multi-channel video service from another person or entity.
5.23 Privacy and Monitoring: Company shall not tap or monitor, or arrange for the tapping or monitoring, or permit any other person to tap or monitor, any cable, line, signal, input device, or subscriber facility for any purpose, without the written authorization of the affected subscriber except to the extent allowed by applicable law or pursuant to a valid court order. Such authorization shall be revocable at any time by the subscriber without penalty by delivering a written notice of revocation to Company; provided, however, that Company may conduct Cable System-wide or individually addressed "sweeps" solely for the purpose of verifying Cable System integrity, checking for illegal taps or billing.
5.24 Subscriber Information: Company shall not record or retain any information not allowed by 47 USC 551. Company shall destroy all subscriber information of a personally-identifiable nature after a reasonable period of time except as authorized not to do so by the affected subscriber. Company shall not sell or otherwise provide to other persons, without the specific written authorization of the subscriber involved, or otherwise make available to any person or entity, lists of some or all of the names or addresses of subscribers.
5.25 Complaints Referred by City: If City refers a Cable Service complaint from a subscriber to Company for resolution, then in five (5) business days of Company's receipt of such referral it shall investigate (including attempting to contact the subscriber) and respond to City in writing (on a form provided by City) as to its resolution of same.
5.26 Reports: Company shall provide reports to City quarterly as follows:
5.26.1 The reports shall be in form and substance acceptable to City, showing on a consistent basis, fairly applied the matters set forth below so as to measure Company's compliance with the standards of the referenced sections and such other matters as City shall from time to time specify. Such reports shall show Company's performance excluding periods of abnormal operating conditions, and if Company contends any such conditions occurred during the period in question, it shall also describe the nature and extent of conditions and show Company's performance both including and excluding the time periods Company contends such conditions were if effect.
5.26.2 The reports shall show the number of phone calls originating from within City. The reports may be for a larger area then City if company can demonstrate the they are, in fact, representative of the phone service provided to subscribers within City, such as where Company's call center receives call from numerous areas with no ability to distinguish between calls from one area or City over another. The reports shall measure and report on Company's compliance with all of Section 5 and its subparts, where quarterly or annual compliance monitoring is a requirement.
5.27 FCC Technical Standards: The following shall apply to Company's implementation of and compliance with the rules and regulations relating to cable television technical standards for signal quality, currently set forth 47 CFR § 76.601 and following, and subsequent amendments thereto:
5.27.1 Company will upon request provide City with a report of testing for compliance with such standards annually or upon request (but no more than twice a year). Such report shall state, in pertinent part, that the person doing the testing has been provided a copy of and reviewed the rules and regulations of the FCC, the FCC order(s) adopting such rules and regulations, and all industry standards and other materials referenced herein; and that such testing when done fairly, in full compliance with the FCC rules and regulations show full compliance with such rules and regulations; or in the alternative setting forth in detail all areas on non-compliance, their actual or likely scope and causes, and Company's professional recommendation of the best corrective measures to immediately and permanently correct the non-compliance.
5.27.2 Company shall establish the following procedure for resolving complaints from subscribers about the quality of the television signal delivered to them: All complaints shall go initially to Company. All matters not resolved by Company shall at Company's or the subscriber's option be referred to City for it to resolve.
5.28 Remedies for Franchise Violations
5.28.1.A Notification
If the Franchising Authority believes that the Grantee has committed a substantial violation of any material provision of this Franchise ("violation"), and the Franchising Authority wished to impose penalties under this Section, the Franchising Authority shall notify Grantee in writing, stating with reason able specificity the nature of the alleged violation. Grantee shall have Cure Period following receipt of such notice to:
1) Respond to Franchising Authority, contesting Franchising Authority's assertion that a violation has occurred and request a hearing in accordance with Section D below; or
2) Cure the violation; or
3) Notify the Franchising Authority that Grantee cannot cure the violation within the Cure Period because of the nature of the violation, and notify the Franchising Authority in writing of what steps the Grantee shall take to cure the violation, including the Grantee's projected completion date for such cure. In such case, the Franchising Authority shall, within thirty (30) days of receipt of such response, either a) accept the Grantee's plan and schedule for curing the violation, or b) set a hearing in accordance with B. below.
The Cure Period, for purposes of Section 1, shall be thirty (30) days, unless Franchising Authority specifies a longer cure period.
If a Grantee fails to demonstrate to the reasonable satisfaction of Franchising Authority that no violation exists, or if Grantee fails to correct the violation within the time prescribed, or if a Grantee is unable to correct the violation and fails to commence corrective action within the time prescribed and to diligently remedy such violation thereafter, the Grantee shall then be given written notice of not less than ten (10) days of a public hearing to be held before the Commission, pursuant to Section 1.1.E. of this Agreement. Said notice shall indicate with reasonable specificity the violation alleged to have occurred. This procedure shall apply to all alleged Franchise violations. Minimum public notice of any hearing under this Section 1 shall be by publication at least once in a newspaper of general circulation in the area at least ten (10) days prior to the meeting.
5.28.1.B. Plan for Cure
In the event that the Grantee notified the Franchising Authority that it cannot cure the violation within the Cure Period, and proposes a plan and schedule for cure which is not accepted by the Franchising Authority, Franchising Authority may, within thirty (30) days of Grantee's receipt of such notice, set a hearing before the City Commission. At the hearing, the Franchising Authority shall review and determine whether the Grantee has taken reasonable steps to cure the violation and whether the Grantee's proposed plan and completion date for cure is reasonable. In the event such plan and completion date are determined by mutual consent to be reasonable, the same may be approved by the Franchising Authority, who may waive all or part of the penalties for such extended cure period in accordance with the criteria set forth in Section F.
5.28.1.C. Imposition of Penalties
In the event that the Grantee fails to cure the violation within the Cure Period, or within an extended cure period approved by the Franchising Authority pursuant to Section B the Franchising Authority may impose penalties in accordance with this Section 1, but may do so only in accordance with the requirements of this section and only after it holds a hearing before the City Commission to determine what penalties, if any or revocation, shall be applied. Any such penalties shall not begin to accrue until after the Franchising Authority renders a decision pursuant to the hearing.
5.28.1.D. Contest of Violation
In the event that the Grantee contest the Franchising Authority's assertion that a violation has occurred, and request a hearing in accordance with Section A (1) above, the Franchising Authority shall set a hearing within sixty (60) days of the Franchising Authority's receipt of the hearing request to determine whether the violation has occurred, and if a violation is found to have occurred, what remedies under this Section 1 shall be applied.
5.28.1.E. Opportunity to be Heard
In the case of any hearing pursuant to this Section 1, Franchising Authority shall notify Grantee of the hearing in writing at least ten (10) days prior to the hearing date. At the hearing, Grantee shall be provided an opportunity to be heard, examine Franchising Authority's witnesses, and to present evidence in its defense. The Franchising Authority may also hear any other Persons interested in the subject, and may provide additional hearing procedures as Franchising Authority deems appropriate. After the hearing is closed, Franchising Authority shall issue written findings and a decision based on the evidence presented. In the event Franchising Authority determines that a violation has occurred, Grantee may appeal the decision to a court of competent jurisdiction for a judicial review. A hearing under this Section 1 prohibits the accumulation of penalties only until a final decision is rendered by a court of competent jurisdiction.
5.28.1.F. Reduction of Penalties
The penalties set forth in Section 1.2 of this Franchise may be reduced at the discretion of the Franchising Authority, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
1) Whether the violation was unintentional;
2) Whether substantial harm resulted;
3) Whether there is a history of prior violations of the same or other requirements;
4) Whether there is a history of overall compliance, and/or;
5) Whether the violation was voluntarily disclosed, admitted or cured.
5.28.1.G. Nature of Remedies
If, after the hearing, Franchising Authority determines that a violation exists, Franchising Authority may use one or more of the following remedies:
1) Order Grantee to correct or remedy the violation within a reasonable time frame as Franchising Authority shall determine;
2) Establish the amount of penalties set forth in Section 1.2, taking into consideration the criteria provided for in Section 1.1.F. as appropriate in Franchising Authority's discretion;
3) Pursue any other legal or equitable remedy available under this Franchise or any applicable law, including actual money damages.
5.28 Penalties
5.28.2.A. Amounts:
Should it be found, after notice, hearing, and appeal procedures, that the Grantee has committed a substantial violation of any material provision of this Franchise, the penalties shall be as follows:
1) For failure to extend Cable Service within the Franchise Area as required by this Franchise, Fifty Dollars ($50) per day.
2) For failure to provide any capability for Public, Education and Government Access use of the Cable System required in this Franchise: One-Hundred Dollars ($100) per day.
3) For violation of applicable customer service standards: Fifty Dollars ($50) per day.
4) For failure to upgrade the Cable System as provided for in this Franchise: One Hundred Twenty Five Dollars ($125) per day for the first 365 days of violation, and Two Hundred Fifty Dollars ($250) per day thereafter.
5.28.2.B Collection of Penalties.
The collection of penalties by the Franchising Authority shall in no respect affect the Grantee's obligation to comply with all of the provision of this Franchise or applicable law.
5.28.2.C. Recourse to Securities.
In conformance with the procedural requirements herein, the Franchising Authority shall be entitled to draw upon the Franchising Authority's letter of credit, performance bond or any security to collect the foregoing damages.
5.28.3 Remedies Not Exclusive
The Franchising Authority has the right to apply any one or any combination of the remedies provided for in this franchise, including without limitation all remedies provided for in this Section, and may without limitation pursue any rights, remedies or actions that it may have in law or equity. Notwithstanding the foregoing, if penalties are assessed against Grantee for any violation of its obligations under this Franchise, they shall be considered the full and final resolution of the violation and shall constitute a waiver of any future claims regarding the violation.