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1 <br />BERNICK AND LIFSON <br />Ms. Je inifer Watts <br />August 13, 1991 <br />Page 2 <br />As you have explained to the cable company, the cable television <br />franchise requires at Article VI, Section 4.C.(3); <br />Service requests for maintenance or repair of Grantee's <br />property shall be performed at no charge to a subscriber. <br />If such maintenance or repair is required as a result of <br />damage caus d by subscriber. Grantee may charge to the <br />subscriber as a maximum its direct costs for material and <br />labor for service calls to subscriber's home. <br />I do not believe that this section of the franchise has been pre­ <br />empted by federal law. On the contrary, as explained below, I <br />believe that federal law grandfathers this requirement in as <br />valid and enforceable by a local franchising authority. Fiist, <br />let me comment on Mr. O'Rourke's statement that the Twenty Five <br />dollar charge is expressly permitted by the franchise agreement. <br />The clause, as referenced above, referred to by Mr. O'Rourke <br />states "if such maintenance or repair is required as a result of <br />damage caused by subscriber," charges can be made. The "such" <br />maintenance or repair is maintenance or repair of Grantee's <br />property. By the company's own definition the maintenance or <br />repair they are charging for is only if such maintenance and <br />repair is not to Grantee's property. In other words, the <br />language from the franchise which permits a charge by the cable <br />company refers only to damage to the cable company's property <br />which was caused by the subscriber. <br />In 47 U.S.C. Section 544(c) the statute states, "In the case of <br />any franchise in el. »ct on the effective date of this title, the <br />franchising authority may, subject to Section 625, enforce <br />requirements contained within the franchise for the provision of <br />services, facilities, and equipment, whether or not related to <br />the establishment of the cable system." <br />The statute clearly anticipates that franchise requirements <br />regarding provision of services are enforceable. Your franchise <br />requires that the Grantee shall provide a maintenance service to <br />a subscriber at no charge. The company will no doubt argue that <br />you may require them to provide this service but that you cannot <br />require them to provide it at no charge because that would be <br />rate regulation. As stated previously, this is not the type of <br />service to which rate deregulation applies. Further, the fact <br />that a service is required by the franchise at no charge means <br />that the service has no rate which the company could increase or <br />decrease.