Town of Westford-Comcast Corporation Settlement Agreement Relative to Renewal License Transfer

Transcription

1 Town of Westford-Comcast Corporation Settlement Agreement Relative to Renewal License Transfer This Settlement Agreement is made this 14th day of January, 2003, between the Board of Selectmen of the Town of Westford, Massachusetts (the Town ), in its role as statutory Issuing Authority (the Issuing Authority ), and Comcast of Massachusetts III, Inc., formerly known as AT&T CSC, Inc., as the Cable Television Licensee in the Town (the Licensee ), and Comcast Corporation ( Comcast ), formerly known as AT&T Comcast Corporation. WHEREAS, AT&T Corp. and Comcast Corporation submitted an FCC Form 394 to the Issuing Authority on March 1, 2002 (the Transfer Request ); and WHEREAS, said Form 394 requested a transfer of control of the Licensee from AT&T Corp. to AT&T Comcast; and WHEREAS, the Issuing Authority denied said Form 394 Transfer Request on June 18, 2002; and WHEREAS, AT&T appealed the Issuing Authority s denial to the Massachusetts Cable Division in filings dated July 18, 2002, Docket No (the Appeal ); and WHEREAS, in pleadings dated August 8, 2002, the Issuing Authority filed responses to the Appeal with the Cable Division; and WHEREAS, the name of the Licensee has been changed from AT&T CSC, Inc. to Comcast of Massachusetts III, Inc. on November 18, 2002, and the name of the Transferee has been changed from AT&T Comcast Corporation to Comcast Corporation on November 18, 2002; evidence of said name changes is attached hereto as Exhibit 1. WHEREAS, the Issuing Authority and Comcast wish to resolve their differences and amicably settle such differences by agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein, the Issuing Authority, Comcast and the Licensee agree as follows: First, Comcast hereby agrees that the Licensee shall upgrade the Westford Cable Television System to 750 MHz in Construction of the upgraded system shall commence no later than August 31, Completion of the new system shall occur no later than October 31, See Comcast letter, dated August 12, 2002, and AT&T Broadband letter, dated October 24, 2002, both letters attached hereto as Exhibit 2. Notwithstanding the commitment made by Comcast in said August 12, 2002 letter, the Issuing Authority agrees that the Licensee shall complete and make its upgraded 750 MHz Cable Television System available to at least ninetyseven percent (97%) of all Westford homes that are currently passed by the Westford Cable System as of the execution date of this Settlement Agreement by October 31, The Licensee shall then have an additional thirty (30) days, until November 30, 2003, to make its upgraded 750 MHz Cable Television System available to one hundred percent (100%) of all Westford residential homes that are currently passed by the Westford Cable Television System as of the execution date of this Settlement Agreement. Final System Completion shall be defined for purposes herein as that point when the upgraded 750 MHz cable system is available to all residential homes in the Town of Westford that are currently passed by the Westford Cable 1

2 Television System as of the execution date of this Settlement Agreement. November 30, 2003 shall be defined for purposes herein as Final System Completion Date. The Issuing Authority shall use its best efforts to expedite permit requests by the Licensee, where necessary, during the upgrade process. If the Cable System is not upgraded by October 31, 2003, the Licensee shall write to the Issuing Authority, to report on the status of its upgraded 750 MHz Cable Television System and related Cable Service roll-outs and, in particular, regarding the likelihood of meeting the Final System Completion Date. Second, the Licensee agrees to secure the obligation to upgrade the Westford Cable Television System, specified in the first paragraph of this Settlement Agreement, with the existing $50, performance bond under the Section 9.2 of the Cable Television Renewal License (the Renewal License ), dated April 8, A copy of that bond is attached as Exhibit 3. Subject to Force Majeure, as such term is defined in Section 15.7 of the Renewal License, in the event that said upgraded Cable Television System is not completed by the Final System Completion Date, the Issuing Authority shall have the right to recover the full $50, from the maker of said performance bond. As the Renewal License is due to expire on April 7, 2003, the Licensee shall not be obligated to upgrade the Westford Cable Television System and the Issuing Authority shall have no right to draw against the performance bond for such non-performance of the Westford Cable Television System upgrade during any period of time that the Issuing Authority has denied a renewal or extension of the Licensee s Renewal License, or fails to grant other lawful authorization for the Licensee to continue operating in Westford. Third, the Issuing Authority is satisfied with assurances from Comcast regarding its management qualifications. Fourth, Comcast has provided additional documentation and assurances to the Issuing Authority that the Licensee shall comply in all respects with the FCC s Customer Service Obligations. Said documentation is attached hereto as Exhibit 4. Fifth, Comcast has provided additional documentation and assurances to the Issuing Authority that it shall have the financial capability to assume control of the Licensee pursuant to 207 CMR In particular, Comcast has provided reasonable documentation to the Issuing Authority regarding its ability to operate to this end, given the high amount of debt that it is incurring in the instant transaction. Said documentation is attached hereto as Exhibit 5. Sixth, Comcast has provided a list of federal regulatory agencies and other groups that have approved the merger; said list is attached hereto as Exhibit 6. Seventh, Comcast shall reimburse the Issuing Authority for its transfer-related costs in the amount of Twelve Thousand Five Hundred and Ninety-Nine Dollars ($12,599.00), within forty-five (45) days of the execution of this Settlement Agreement. The Town will provide documentation, in reasonable detail, to Comcast of said transfer-related costs. 2

3 Eighth, no later than January 14, 2003, the Issuing Authority shall consent to the FCC Form 394 Transfer Request, in the form contained in Exhibit 7. Ninth, no later than January 31, 2003, the Issuing Authority and Comcast shall jointly send a Stipulation of Dismissal to the Cable Division, stipulating that the Appeal before the Cable Division be dismissed, in the form contained in Exhibit 8. Tenth, this Settlement Agreement is specific to and applicable to the Town of Westford only; it shall have no relevance and/or effect whatsoever on any other communities that may have denied the AT&T FCC Form

4 IN WITNESS WHEREOF, the Issuing Authority, Comcast of Massachusetts III, Inc., and Comcast Corporation have executed this Settlement Agreement in triplicate as of this 14th day of January, By: The Westford Board of Selectmen Geraldine ( Dini ) Healy-Coffin, Chair Christopher Romeo Robert McCusker Alan Loiselle Robert Jefferies Comcast of Massachusetts III, Inc., formerly known as AT&T CSC, Inc. Kevin M. Casey Senior Vice President-New England Region Comcast Corporation, formerly known as AT&T Comcast Corporation By: Arthur R. Block Senior Vice President 4

5 EXHIBITS 5

6 EXHIBIT 1 Evidence of AT&T CSC, Inc. and AT&T Comcast, Inc. Name Changes (See Attached) 6

7 EXHIBIT 2 August 12, 2002 Comcast Letter and October 24, 2002 AT&T Broadband Letter (See Attached) 7

8 EXHIBIT 3 Performance Bond (See Attached) 8

9 EXHIBIT 4 Comcast Documentation Regarding FCC s Customer Service Obligations (See Attached) 9

10 EXHIBIT 5 Comcast Documentation Regarding Financial Qualifications (See Attached) 10

11 EXHIBIT 6 Federal Regulatory Agencies and Other Groups that have Approved the Merger The following is a list of federal regulatory agencies and other groups that have approved the merger: + Federal Communications Commission; + Department of Justice; + State of New Jersey; + State of Connecticut; + 1,111 AT&T Broadband communities; and Comcast communities. 11

12 EXHIBIT 7 Issuing Authority Transfer Consent Letter (See Attached) 12

13 January 14, 2003 Ms. Alicia Matthews Director Cable Television Division One South Station Boston, MA RE: Westford Transfer Application Dear Ms. Matthews: Please be advised that, on January 14, 2003, the Board of Selectmen, Issuing Authority for the Town of Westford, consented to the request of AT&T Corp., as Transferor, and Comcast Corporation, formerly known as AT&T Comcast Corporation, as Transferee, to transfer control of the Licensee holding the Westford Cable Television Renewal License to Comcast Corporation. Very Truly Yours, Geraldine ( Dini ) Healy-Coffin, Chair Christopher Romeo Robert McCusker Alan Loiselle Robert Jefferies The Westford Board of Selectmen cc: Cable Advisory Committee AT&T Broadband Peter J. Epstein, Esquire 13

14 EXHIBIT 8 Stipulation of Dismissal (See Attached) 14

15 COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF TELECOMMUNICATIONS AND ENERGY CABLE TELEVISION DIVISION ) AT&T CSC, Inc, ) AT&T Corp., and ) AT&T Comcast Corporation ) Appellants, ) ) Docket No. CTV 02-5 v. ) ) Board of Selectmen of the ) Town of Westford ) Appellee. ) ) STIPULATION OF DISMISSAL To the extent that the Cable Division still retains jurisdiction of the above-captioned matter, pursuant to 801 C.M.R. 1.01(6)(g), the parties hereby stipulate that this matter be dismissed with prejudice and without costs to either party, waiving all rights of appeal. Appellee, Board of Selectmen of the Town of Westford By its Attorney _ Peter J. Epstein, Esquire (BBO#155410) Epstein & August, L.L.P. 101 Arch Street, Suite 900 Boston, MA (617) (617) (fax) Appellants, AT&T CSC, Inc, AT&T Corp., and AT&T Comcast Corporation By their Attorney _ Cameron F. Kerry, Esquire (BBO #269660) Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. One Financial Center Boston, MA (617) (617) (fax) 15