Borough of Denver, PA
Lancaster County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Denver 8-31-2009 by Ord. No. 587.[1] Amendments noted where applicable.]
A204a Ex A Complimentary Svc Locations A204b Ex B New Services
[1]
Editor's Note: This ordinance superseded former Ch. A204, adopted 10-12-1998 by Ord. No. 491 (Ch. 13, Part 3, of the 1996 Code).

§ A204-1 Definitions.

For the purposes of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. Unless otherwise defined herein, capitalized terms, phrases, words, and abbreviations shall have the meanings ascribed to them in the Cable Communications Policy Act of 1984, as amended.
AFFILIATE
When used in relation to Blue Ridge, another person who or which owns or controls, is owned or controlled by, or is under common ownership or control with, Blue Ridge. For the purpose of this definition, the words "owns," "owned," and "common ownership" shall mean a direct or indirect stock, partnership, membership or other equity interest of 25% or more.
BASIC SERVICE
Any service tier which includes the retransmission of local broadcast television signals.
BLUE RIDGE
Blue Ridge Cable Technologies, Inc., t/a, d/b/a Blue Ridge Communications.
BOROUGH
The Borough of Denver, Lancaster County, Commonwealth of Pennsylvania.
CABLE ACT
The Communications Act of 1934 (47 U.S.C. §§ 521-561), as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, and as now or hereafter further amended.
CABLE SERVICE
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.
CABLE SYSTEM
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 a community, but such term does not include the following:
A. 
A facility that serves only to retransmit the television signals of one or more television broadcast station(s);
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 47 U.S.C. §§ 201-276, except that such facility shall be considered a cable system [other than for purposes of 47 U.S.C. § 541(c)] 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 47 U.S.C. § 573; or
E. 
Any facilities of any electric utility used solely for operating its electric utility system.
FCC
The Federal Communications Commission or successor governmental entity thereto.
FRANCHISE
The initial authorization, or renewal thereof, issued by Denver Borough, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes the construction and operation of the cable system for the purpose of offering cable service to subscribers in the franchise area.
FRANCHISE AGREEMENT or AGREEMENT
This agreement and any amendments or modifications hereto.
FRANCHISE AREA
The present legal boundaries of the Borough as of the effective date of this ordinance, and shall also include any additions thereto, by annexation or other legal means.
GROSS REVENUES
All cash, credits, in-kind contributions, property of any kind or nature, or other consideration whatsoever in any form arising from or attributable to the sale or exchange of cable service (as currently or hereafter defined) or in any way derived directly or indirectly from the operation of the cable system in the Borough by the company and/or its affiliates including, but not limited to, subscription fees, equipment sales or rentals (including converters and remote controls), equipment replacements, premium services, fees from each cable programming tier, change-in-service fees, additional set and outlet fees, converter fees, remote fees, installation fees, service fees, disconnection fees, relocation fees, pay-per-view fees, fees for any and all music services (including DMX), reconnections, cancellations, leased access fees, video-on-demand, cable-related publications, any and all advertising revenues (including national, regional and local advertising), commissions from home-shopping channels (revenues from home-shopping channels and advertising may be prorated among the Borough and adjacent franchise authorities on a per-subscriber basis), late-payment fees, NSF check charges, channel leasing payments, revenue received from the sale of time or programming on leased channels, the sale of commercial time or programs, the sale of program guides, revenue from interactive television services, transport service fees, fees for trouble calls, fees for downgrading any level of cable service programming, fees charged for any optional, per-channel or per-program services, bank-at-home services and other revenue sharing arrangements provided through the cable system, franchise fees, and revenue received from provision of any lawful cable service in the Borough. But for a decision of the company not to conduct operations directly by Blue Ridge, all revenues collected by an affiliate shall be considered total local gross revenues and subject to the franchise fee if such revenues reasonably could have been derived from the operations of its cable system within the service area directly by Blue Ridge. Nothing herein shall be interpreted to expand the Borough's right to impose franchise fees on services beyond those provided by law.
PERSON
Any natural person or any association, firm, partnership, joint venture, limited liability company, corporation, or other legally recognized entity, whether for-profit or not-for profit, but shall not mean the Borough.
PUBLIC WAY
The surface of, and the space above and below, any public street, highway, turnpike, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Borough in the franchise area, which shall entitle the Borough and Blue Ridge to the use thereof for the purpose of installing, operating, repairing, and maintaining the cable system. "Public way" shall also mean any easement now or hereafter held by the Borough within the franchise area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Borough and Blue Ridge to the use thereof for the purposes of installing, operating, and maintaining the cable system over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the cable system.
SERVICE AREA
The present municipal boundaries of the Borough and shall include any additions thereto by annexation or other legal means.
SUBSCRIBER
A person or user of the cable system who lawfully receives or has received cable services or other services therefrom with Blue Ridge's express permission within the service area.
TROUBLE CALL
Any oral or written communication to Blue Ridge reporting a service interruption that was not caused by circumstances beyond Blue Ridge's direct control.

§ A204-2 Grant of authority.

A. 
Grant of franchise. The Borough hereby grants to Blue Ridge under the Cable Act a nonexclusive franchise, which authorizes Blue Ridge to construct and operate a cable system in, along, among, upon, across, above, over, under, or in any manner connected with public ways within the franchise area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any public way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system. Nothing in this franchise agreement shall be construed to prohibit Blue Ridge from offering any service over its cable system that is not prohibited by federal, state or local law.
B. 
Term of franchise. Unless terminated earlier in accordance with applicable provisions of this agreement, the franchise granted pursuant to this agreement shall commence upon the date of execution by all parties necessary to sign the document and shall expire seven years thereafter.
C. 
Renewal. Any renewal of this franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, 47 U.S.C. § 546.
D. 
Reservation of authority. Nothing in this franchise agreement shall:
(1) 
Abrogate the right of the Borough to perform any public works or public improvements of any description;
(2) 
Be construed as a waiver of any codes or ordinances of general applicability promulgated by the Borough; or
(3) 
Be construed as a waiver or release of the rights of the Borough in and to the public ways.

§ A204-3 Cable system.

A. 
Permits and general obligations. Blue Ridge shall be responsible for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain or repair the cable system, or any part thereof, prior to the commencement of any such activity. Construction, installation, and maintenance of the cable system shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by Blue Ridge for use in the cable system in accordance with the terms and conditions of this franchise agreement shall be located so as to minimize the interference with the proper use of the public ways and the rights and reasonable convenience of property owners who own property that adjoins any such public way. Blue Ridge shall not be required to obtain prior approval or permits for routine repair and maintenance of its cable system, such as service drops to individual subscribers or work involving a single pedestal.
B. 
Conditions on street occupancy.
(1) 
New grades or lines. If the grades or lines of any public way within the franchise area are lawfully changed at any time during the term of this franchise agreement, then Blue Ridge shall, upon reasonable advance written notice from the Borough (which shall not be less than 20 business days) and at its own cost and expense, protect or promptly alter or relocate the cable system, or any part thereof, so as to conform with any such new grades or lines. If public funds are available to any person using such street or public right-of-way for the purpose of defraying the cost of any of the foregoing, the Borough shall upon written request of Blue Ridge make application for such funds on behalf of Blue Ridge.
(2) 
Relocation at request of the Borough.
(a) 
Upon receipt of reasonable advance notice (except under exigent circumstances) Blue Ridge shall, in a timely manner and at its own expense, locate, protect, support, temporarily disconnect, relocate in the public way, or remove from the public way or other property owned by the Borough, any property of Blue Ridge when lawfully required by the Borough by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Borough; provided, however, Blue Ridge in all such cases shall share proportionately with utility companies in any federal, state, or county funds awarded to the Borough specifically for any of the purposes enumerated above. Nothing in this section shall be construed to require the Borough to make application for or seek a grant for any funds.
(b) 
Upon the failure of Blue Ridge to commence, pursue, or complete any work required by law (or by the provisions of Blue Ridge's franchise, or any other applicable federal, state or local law, ordinance, rule or regulation) to be done in any public way or other public place within the time prescribed (or if not prescribed in a timely manner), and to the satisfaction of the Borough, the Borough, at its option, may cause such work to be done, and Blue Ridge shall pay to the Borough the cost thereof in the itemized amounts reported by the Borough to Blue Ridge within 30 days after receipt of such itemized report. However, Blue Ridge, upon prior approval of the Borough, may elect to abandon any or all of its underground property, which prior approval shall not be unreasonably withheld.
(c) 
In requiring Blue Ridge to protect, support, temporarily disconnect, relocate or remove any portion of its property, the Borough shall treat Blue Ridge the same as, and require no more of Blue Ridge than, any similarly situated entity.
(3) 
Relocation at request of third party. Blue Ridge shall, upon reasonable prior written request of any person holding a permit issued by the Borough to move any structure, temporarily move its wires to permit the moving of such structure; provided:
(a) 
Blue Ridge may impose a reasonable charge on any Person for the movement of its wires, and such charge may be required to be paid in advance of the movement of its wires; and
(b) 
Blue Ridge is given not less than 20 business days advance written notice to arrange for such temporary relocation.
(4) 
Restoration of public ways. If, in connection with the construction, operation, maintenance, or repair of the cable system, Blue Ridge disturbs, alters, or damages any public way, Blue Ridge agrees that it shall at its own cost and expense, replace and restore any such public way to a condition reasonably comparable to the condition of the public way existing immediately prior to the disturbance.
(5) 
Safety requirements. Blue Ridge shall, at its own cost and expense, undertake all necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent failures and accidents that may cause damage, injuries or nuisances. All work undertaken on the cable system shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the franchise area.
(6) 
Trimming of trees and shrubbery. Blue Ridge shall have the authority to trim trees or other natural growth overhanging any of its cable system in the franchise area so as to prevent contact with Blue Ridge's wires, cables, or other equipment. All such trimming shall be done at Blue Ridge's sole cost and expense.
(7) 
Use of Blue Ridge's poles and conduit by the Borough. Except as already set forth in this agreement and subject to any applicable state or federal regulations or tariffs, the Borough shall have the right to make additional use of any poles or conduits controlled or maintained exclusively by or for Blue Ridge in any public way; provided, however, that:
(a) 
Such use by the Borough does not interfere with a current or future use by Blue Ridge;
(b) 
The Borough holds Blue Ridge harmless against any and from all claims, demands, costs, or liabilities of every kind and nature whatsoever arising out of such use of said poles or conduits, including, but not limited to, reasonable attorneys' fees and costs except for claims and damages arising out of the willful or negligent acts caused by Blue Ridge;
(c) 
Such use by the Borough shall not be for providing telecommunications services in competition with Blue Ridge; and
(d) 
At Blue Ridge's sole discretion, the Borough may be required either to pay a reasonable rental fee or otherwise reasonably compensate Blue Ridge for the use of such poles, conduits or equipment; provided, however, that Blue Ridge agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement, or other authorization, relating to the franchise area.
(8) 
Emergency usage. Blue Ridge shall comply with emergency or disaster notification requirements of the FCC and state emergency or disaster agencies.
(9) 
Aerial and underground construction. If all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the franchise area are underground, Blue Ridge shall place its cable systems' transmission and distribution facilities at least 18 inches underground, provided that such facilities are actually capable of accommodating Blue Ridge's cable and other equipment without technical degradation of the cable system's signal quality. In any region(s) of the franchise area where the transmission or distribution facilities (excluding facilities such as pedestals as well as customer premises equipment and drops) of the respective public or municipal utilities are both aerial and underground, Blue Ridge shall have the discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. If underground, such facilities shall be located at least 18 inches underground. Nothing in this Subsection B(9) shall be construed to require Blue Ridge to construct, operate, or maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.
C. 
Strand maps. Blue Ridge shall provide to the Borough for its exclusive use and shall maintain at Blue Ridge's local office(s) a complete set of strand maps of the Borough. The hard copy maps shall show the areas in which Blue Ridge's facilities exist in all of the streets of the Borough. Updated maps shall be delivered to the Borough within 60 days upon request.

§ A204-4 Service obligations.

A. 
General service obligation.
(1) 
Blue Ridge shall make cable service available to every residential dwelling unit or other occupied structure within the franchise area where the minimum density is at least 25 customers per mile. For purposes of this subsection, a "customer" is defined as a Borough resident who has signed an agreement committing to the purchase of services from Blue Ridge. Subject to the density requirement, Blue Ridge shall offer cable service to all new or previously unserved dwelling units or other occupied structures located within 125 feet of Blue Ridge's distribution cable.
(2) 
Blue Ridge may elect to provide cable service to areas not meeting the above density standards. Blue Ridge may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop in or line extension in excess of the above standards. Any such additional charge shall be computed on a time-plus-materials basis to be calculated on that portion of the installation which exceeds the one-hundred-twenty-five-foot standard set forth above.
(3) 
Upon written request for cable service from a developer or any of the residents in a low-density area, Blue Ridge shall respond in writing within 60 days of such request with information regarding the potential for extending cable service, or of providing comparable service through alternative means, and all cost-sharing options available, according to the provisions herein.
B. 
Programming.
(1) 
Diversity of programming. Blue Ridge shall offer to all subscribers a diversity of video programming services in broad categories. By way of example, the diversity of programming may include education programming, news and public affairs, local and regional news, sports, weather, music, family programming, children's programming, movies, home and garden programming, and business and financial programming. The current programming meets this requirement.
(2) 
Signal scrambling. Blue Ridge shall at all times comply with FCC regulations regarding scrambling or other encryption of audio and video signals.
(3) 
Parental control capability. Upon request, Blue Ridge shall provide subscribers with the capability to control the reception of any video and/or audio channel on the cable system providing sexually explicit adult programming in accordance with applicable law.
C. 
No discrimination. Neither Blue Ridge nor any of its employees, agents, representatives, contractors, subcontractors, or consultants, nor any other person, shall unlawfully discriminate or permit unlawful discrimination between or among any persons in the availability of cable services provided in connection with the cable system in the franchise area. It shall be the right of all persons to receive all available services provided on the cable system so long as such person's financial or other obligations to Blue Ridge are satisfied.
D. 
New developments. The Borough shall provide Blue Ridge with written notice of the issuance of building or development permits for planned developments within the franchise area requiring undergrounding of cable facilities. The Borough agrees to require the developer, as a condition of issuing the permit, to give Blue Ridge access to open trenches for deployment of cable facilities and at least 10 business days written notice of the date of availability of open trenches. Developer shall be responsible for the digging and backfilling of all trenches. Blue Ridge shall be responsible for engineering and deployment of labor applicable to its cable facilities.
E. 
Prohibition against reselling service. No person shall resell, without the express prior written consent of Blue Ridge, any cable service, program or signal transmitted over the cable system by Blue Ridge.

§ A204-5 Rates, fees and charges to customers.

All rates, fees, charges, deposits and associated terms and conditions to be imposed by Blue Ridge or any affiliated person for any cable service as of the effective date shall be in accordance with applicable FCC rate regulations. Before any new or modified rate, fee, or charge is imposed, Blue Ridge shall follow the applicable FCC notice requirements and rules and notify affected subscribers, which notice may be by any means permitted under applicable law.

§ A204-6 Customer service standards, subscriber bills, and privacy protection.

A. 
Customer service standards. The Borough hereby adopts the customer service standards set forth in Section 76.309 of Part 47 of the FCC's rules and regulations, 47 CFR 76.309. Blue Ridge shall comply in all respects with the customer service requirements established by the FCC. Additionally, Blue Ridge shall have a publicly listed telephone number by which persons can communicate with Blue Ridge. Blue Ridge shall comply with Subsections B through G so long as they are consistent with applicable FCC rules and regulations.
B. 
Notices.
(1) 
Blue Ridge shall provide written notice and information to each subscriber upon initial subscription and at intervals not more than one year thereafter, annually to the Borough, and at any time upon request by the Borough or a subscriber, concerning each of the following areas:
(a) 
Products and services offered;
(b) 
Prices and options for programming services and conditions of subscription to programming and other services;
(c) 
Installation and service maintenance policies;
(d) 
Instructions on how to use the cable service and any converters;
(e) 
Channel positions and programming carried on the cable system;
(f) 
Customer service requirements contained in this section;
(g) 
Billing and customer complaint procedures;
(h) 
Blue Ridge's addresses, telephone numbers and office hours;
(i) 
The subscriber's right to obtain a parental control device; and
(j) 
A notice of subscriber privacy rights as required by federal law and contained in Subsection G below.
(2) 
Blue Ridge shall provide subscribers and the Borough with 30 days' advance notification of any changes in services including, but not limited to, the deletion of channels from the basic service tier or the movement of any channel from one service tier to another service tier. Blue Ridge shall also provide subscribers and the Borough with 30 days' advance notification of any changes in rates to be charged subscribers for service tiers, installation or any other cable services provided by Blue Ridge. This notification shall not be required for the offering of any particular pay-per-view programming. Blue Ridge shall also not be required to provide prior notice to subscribers of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment or charge of any kind imposed by any federal agency, the Commonwealth of Pennsylvania or the Borough on the transaction between Blue Ridge and the subscriber.
(3) 
Blue Ridge shall maintain such files as required by the FCC to be made available to the public containing all written notices provided to subscribers pursuant to the requirements contained herein and containing a copy of printed promotional material submitted to subscribers during the previous 24 months.
(4) 
Blue Ridge shall provide sample bills, showing the cost to the subscriber of each service tier package, including the franchise fee, to the Borough upon request.
C. 
Subscriber bills.
(1) 
Bills shall be clear, concise and understandable and will be itemized in accordance with FCC or other federal and state requirements. Bills must be fully itemized, with itemizations including, but not limited to, basic service tier (when ordered as a stand alone service), standard tier and premium tier service charges, if applicable, equipment charges and any installation or repair charges. The bill shall state the billing period, including an effective due date, the amount of current billing and any relevant credits or past due balances.
(2) 
Blue Ridge shall include on the face of each bill the name of and contact information for Blue Ridge.
(3) 
Blue Ridge shall include on the face of each bill the name of the municipality to which each subscriber is assigned by Blue Ridge. Upon written request from the Borough, Blue Ridge shall not include the municipality's telephone number on the face of the bill.
(4) 
Blue Ridge shall provide bill payment facilities at its local business office to accept such payments at least during normal business hours.
(5) 
With respect to advance billing, late fees, and the collection of past due debts owed to it by subscribers, Blue Ridge may exercise its rights under and shall comply with applicable law.
D. 
Subscriber complaint procedures. Blue Ridge shall establish clear, written procedures for resolving all subscriber complaints, which shall include at least the following:
(1) 
Blue Ridge shall provide the subscriber with a written response to a written complaint addressed to the local business office within 15 days of its receipt. Such response shall include the fact that the complaint has been received, the results of its initial inquiry into the subject matter of the complaint and either: its decision based on those results; or its need to perform further investigation into the complaint. If Blue Ridge needs to perform further investigation, it shall provide the subscriber with a written response containing its decision when its investigation is completed. Upon request, a copy of Blue Ridge's written response(s) shall be sent to the Borough.
(2) 
If the Borough is contacted directly about a subscriber complaint, it shall refer the subscriber to Blue Ridge.
(3) 
Any subscriber who, in good faith, disputes all or part of any bill sent by Blue Ridge has the option of withholding the disputed amount or the initiation of collection procedures until Blue Ridge has investigated the dispute in good faith and has made a determination that the amount is owed, provided that:
(a) 
The subscriber provides a written complaint to Blue Ridge in a timely fashion and includes identifying information;
(b) 
The subscriber pays all undisputed charges; and
(c) 
The subscriber cooperates in determining the appropriateness of the charges in dispute.
(4) 
Blue Ridge shall maintain a record of trouble calls received by Blue Ridge that have generated a service response action in the Borough. Upon request, Blue Ridge shall make available to the Borough a copy of such records. Blue Ridge agrees to maintain such records for at least 36 months from the date of receipt. If the Borough believes that there has been an increase in trouble calls, it may request a trouble call report and request that Blue Ridge conduct an inquiry concerning trouble calls or a service-related issue. Blue Ridge shall complete the inquiry and provide the Borough with a written report no later than 60 days after the request is received by Blue Ridge.
E. 
Disconnection. Blue Ridge may disconnect or terminate a subscriber's service for cause:
(1) 
If at least 30 days have elapsed from the due date of the bill which subscriber has failed to pay; and
(2) 
If Blue Ridge has provided notice, in a bill message, phone call or email, to the affected subscriber prior to disconnection, specifying a time period after which cable services are subject to disconnection; and
(3) 
If at any time and without notice Blue Ridge determines in good faith that subscriber has tampered with or abused Blue Ridge's equipment or is engaged in theft of cable service or has provided false information with regard to subscriber's account.
(4) 
Subscriber refuses or fails to provide adequate security for payment after filing for relief under bankruptcy laws.
F. 
Damaged or lost equipment. In the event that a subscriber is unable to provide documentation to substantiate that a converter or other equipment was stolen or destroyed by fire, Blue Ridge shall be entitled to assess a replacement cost for the equipment.
G. 
Privacy.
(1) 
Blue Ridge shall respect the rights of privacy of every subscriber and shall not violate such rights through the use of any device or signal associated with the cable system. Blue Ridge shall at all times comply with the privacy provisions of Section 631 of the Cable Act, 47 U.S.C. § 551, and all other applicable federal and state privacy laws and regulations.
(2) 
Blue Ridge shall be responsible for carrying out and enforcing such privacy policy, and shall at all times maintain adequate physical, technical and administrative security safeguards to ensure that personal subscriber information is handled and protected strictly in accordance with this policy and all applicable laws and regulations.
(3) 
Upon a request by a subscriber, Blue Ridge shall make available for inspection at a reasonable time and at its principal place of business all personal subscriber information that Blue Ridge maintains regarding said subscriber. Blue Ridge shall ensure that all information related to billing and service requests is accurate and up-to-date and shall promptly correct any errors upon discovery.
(4) 
All references in this section are subject to the provision of Public Law No. 107-56 (October 26, 2001) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, known as the "USA Patriot Act."

§ A204-7 Oversight and regulation by Borough.

A. 
Franchise fees. Blue Ridge shall pay to the Borough a franchise fee in an amount equal to 5% of annual gross revenue received from the operation of the cable system to provide cable service in the franchise area. Said franchise fee may be increased not more than once annually at the sole and exclusive election of the Borough to an amount not to exceed the maximum amount allowed by law, upon 180 days' prior written notice to Blue Ridge. The payment of franchise fees shall be made on a quarterly basis and shall be due 45 days after the close of each calendar quarter and 60 days after the end of the fourth quarter of the year. Each franchise fee payment shall be accompanied by a report prepared by a representative of Blue Ridge, which shows the basis for the computation of all gross revenue actually received from the operation of the cable system for the provision of cable service in the franchise area during the period for which such franchise fee payment is made.
B. 
Franchise fees subject to inspection.
(1) 
Upon reasonable prior written notice, during normal business hours, at Blue Ridge's principal business office, the Borough shall have the right to inspect Blue Ridge's financial records used to calculate the Borough's franchise fees; provided, however, that any such inspection shall take place within 36 months from the date the Borough receives such payment, after which period any such payment not contested by the Borough shall be considered final.
(2) 
Upon 20 days' prior written notice, the Borough shall have the right to inspect and make extracts at Blue Ridge's local office of the financial records of Blue Ridge for the purpose of verifying or identifying revenue owed to the Borough. Where, in the opinion of the Borough, they are reasonably necessary to verify or supplement Blue Ridge's records, the Borough may request, and Blue Ridge shall use its best efforts to obtain and furnish, financial records of affiliates providing cable service in the cable system and make the same available for inspection by the Borough at the office of the Borough. Upon completion of any such inspection by the Borough, the Borough shall provide to Blue Ridge a final report, which sets forth the Borough's findings in detail, including any and all substantiating documentation. Blue Ridge shall have 30 days from the receipt of the report to provide the Borough with a written response, including any substantiating documentation. Any "finally settled amount(s)" due to the Borough as a result of such inspection shall be paid to the Borough by Blue Ridge within 30 days from receipt of written notice of the acceptance of such finally settled amount from the Borough. For purposes of this section, the term "finally settled amount(s)" shall mean the agreed upon underpayment, if any, to the Borough by Blue Ridge as a result of any such inspection. The Borough shall bear the expense of any inspection of Blue Ridge's books and records.
(3) 
In the event that any franchise fee or other payment is not made or the requisite documentation and certification is not provided on or before the applicable dates heretofore specified, interest shall be compounded daily and set at the one-year United States Treasury Bill rate existent on the date payment was due. Any amount recomputed to reflect the correct payment due shall bear annual interest as described from the date such payment was originally due.
(4) 
On an annual basis, upon 30 days' prior written notice given on or prior to September 30 of the year following that for which franchise fees have been paid, the Borough shall have the right to conduct an independent audit of Blue Ridge's records and the records of its affiliates providing cable service in the cable system reasonably related to the sources, amounts and computation of gross revenue in accordance with generally accepted accounting principles. In the event that an audit finds an underpayment, Blue Ridge shall pay the amount owed, and if such amount owed is 5% or more, Blue Ridge will pay the cost of such audit.
C. 
Oversight of franchise and testing for compliance. In accordance with applicable law, the Borough shall have the right to oversee, regulate and, on reasonable prior written notice, periodically inspect the construction, operation and maintenance of the cable system in the franchise area, and all parts thereof, as necessary to monitor Blue Ridge's compliance with the provisions of this franchise agreement. Upon written request of the Borough, Blue Ridge shall furnish a copy of all technical tests performed on the cable system by it or on its behalf to the Borough at no cost or expense to the Borough. The Borough may perform technical tests of the cable system during reasonable times and in a manner which does not unreasonably interfere with the normal business operations of Blue Ridge or the cable system in order to determine whether or not Blue Ridge is in compliance with the requirements herein and all applicable laws, ordinances, rules and regulations. For its technical tests, the Borough shall retain, at its sole cost and expense, a professional engineering organization that has been certified by a national technical standards body to conduct such inspections and examinations. Except in emergency circumstances, such tests may be undertaken only after giving Blue Ridge reasonable notice thereof, not to be less than five business days, and providing a representative of Blue Ridge an opportunity to be present during such tests. In the event that such testing demonstrates that Blue Ridge has failed to comply with any FCC technical standard or any technical standard approved by the FCC, the costs of such tests shall be borne by Blue Ridge and paid to the Borough within 30 days. In the event that such testing demonstrates that Blue Ridge has complied therewith, the cost of such testing shall be borne by the Borough.
D. 
Technical standards. Blue Ridge shall comply with all applicable technical standards of the FCC as published in Subpart K of 47 CFR 76. To the extent those standards are altered, modified, or amended during the term of this franchise, Blue Ridge shall comply with such altered, modified or amended standards within a reasonable period after such standards become effective.
E. 
Maintenance of books, records, and files.
(1) 
Books and records. Throughout the term of this franchise agreement, Blue Ridge agrees that the Borough, upon reasonable prior written notice to Blue Ridge, may review such of Blue Ridge's books and records regarding the operation of the cable system and the provision of cable service in the franchise area which are reasonably necessary to monitor Blue Ridge's compliance with the provisions of this franchise agreement at Blue Ridge's local business office, during normal business hours and without unreasonably interfering with Blue Ridge's business operations. Such books and records shall include any records required to be kept in a public file by Blue Ridge pursuant to the rules and regulations of the FCC. All such documents pertaining to financial matters that may be the subject of an inspection by the Borough shall be retained by Blue Ridge for a period not to exceed three years.
(2) 
File for public inspection. Throughout the term of this franchise agreement, Blue Ridge shall maintain at the appropriate location pursuant to FCC public inspection file regulation, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations.
(3) 
Proprietary information. Notwithstanding anything to the contrary set forth in this § A204-7, Blue Ridge shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The Borough agrees to treat any information disclosed by Blue Ridge as confidential and only to disclose it to employees, representatives, and agents of the Borough that have a need to know, or in order to enforce this franchise agreement and who agree in writing to maintain the confidentiality of all such information, except to the extent such information or records are not exempt from disclosure or are considered a public record within the Right-to-Know Act, 65 P.S. §§ 66.1-66.4,[1] or any other open records laws. In the event a request is made by an individual or entity not an employee, agent or representative of the Borough or by an employee, agent or representative of the Borough not acting in his or her official capacity for information related to the franchise and marked by Blue Ridge as confidential and/or proprietary, the Borough shall permit Blue Ridge to protect its interests to the extent permitted by law (e.g., if such information is exempt from disclosure or not considered a public record within the Right-to-Know Act) before providing documents or access to documents to the requestor. Blue Ridge shall reimburse the Borough for any reasonable expense related to protecting Blue Ridge's rights, including attorneys' fees, incurred as a result of permitting Blue Ridge to protect its interests. Blue Ridge shall not be required to provide subscriber information in violation of Section 631 of the Cable Act, 47 U.S.C. § 551. For purposes of this § A204-7, the terms "proprietary or confidential" include, but are not limited to, information relating to the cable system design, subscriber lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by Blue Ridge to be competitively sensitive.
[1]
Editor's Note: Said act was repealed 2-14-2008 by P.L. 6, No. 3; see now 65 P.S. § 67.101 et seq.

§ A204-8 Insurance and indemnity.

A. 
Insurance. Throughout the term of this franchise agreement, Blue Ridge shall, at its own cost and expense, maintain comprehensive general liability insurance and provide to the Borough, certificates of insurance designating the Borough and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that Blue Ridge has obtained the insurance required in this § A204-8. Such policy or policies shall be in the minimum amount of $3,000,000 per occurrence for bodily injury or death to any one person, and $3,000,000 per occurrence for bodily injury or death of any two or more persons resulting from one occurrence, and $1,000,000 per occurrence for property damage resulting from any one accident, and $500,000 per occurrence for libel and slander associated with programming on channels that are directly or indirectly controlled by Blue Ridge. Such policy or policies shall be non-cancelable except upon 30 days prior written notice to the Borough. Blue Ridge shall provide workers' compensation coverage in accordance with applicable law.
B. 
Indemnification. Blue Ridge shall indemnify, defend and hold harmless the Borough, its elected and appointed officials, officers, employees, and agents, from and against any liability, damages or claims which arise out of the construction, operation, maintenance or removal of the cable system, including, but not limited to, reasonable attorneys' fees, provided that the Borough shall give Blue Ridge written notice of its obligation to indemnify the Borough within 10 business days of receipt of a claim or action pursuant to this § A204-8. If the Borough determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the Borough.

§ A204-9 System description and service.

A. 
Complimentary service.
(1) 
Blue Ridge shall provide without charge one outlet of standard nonpremium service (i.e., basic and standard service exclusive of premium channels) including the requisite converter box or other requisite equipment for signal reception to all public and private elementary and secondary schools in the franchise area which receive Title I funding and to the Borough municipal buildings. Additional buildings and facilities to be connected with complimentary service as of the date of this agreement are identified in Exhibit A, attached hereto and made a part hereof.[1]
[1]
Editor's Note: Exhibit A is included at the end of this chapter.
(2) 
Within three months of the effective date of this agreement, Blue Ridge shall supply, at no charge to the municipality, high-speed Internet service via cable modem to one municipality building to be designated by the municipality. No charge shall be made for installation or service. The cable modem Internet service shall meet the needs of the municipality and shall be provided at a minimum of the level of speed and capacity that is being utilized in the building as of the effective date of the agreement. There is no restriction on networking the service within the designated building.
(3) 
Blue Ridge shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to such premises exceeds 150 feet of cable unless the appropriate municipal entity agrees to pay the difference between Blue Ridge's cost of installing a one-hundred-fifty-foot drop and the cost of installing a longer drop. In the event more than one outlet is provided to such buildings, the municipality shall pay the usual installation and service fees associated therewith.
B. 
Educational and Governmental (EG) channel.
(1) 
The Borough reserves the right to obtain from Blue Ridge, within 60 days of a written request by the Borough, an EG channel in accordance with Section 611 of the Cable Act for exclusive use by the Borough and/or its designee. The digital channel shall be used for programming related to community, governmental and/or educational activities. The Borough shall have complete control over the content, scheduling, administration and all other aspects of the EG channel and may delegate certain or all of such functions to an appropriate designee. Blue Ridge shall not exercise any editorial control over EG channel programming.
(2) 
The Borough may obtain the EG Channel pursuant to this section upon the earlier of the following two events:
(a) 
When Blue Ridge has converted its cable system to a fully digitized transmission (i.e. Blue Ridge no longer utilizes the analog spectrum for transmitting cable programming); or
(b) 
Four years from the effective date of this agreement.
(3) 
To enable the Borough and/or its designees to utilize the EG channel, the Borough shall select, and Blue Ridge shall connect to the cable system, a mutually agreeable remote origination point. Blue Ridge shall provide and install, within 60 days of receiving notice from the Borough, that it wishes to obtain an EG channel, cable, wire, lines and/or other necessary signal distribution equipment such that live or tape playback of cablecasts or other programming can originate from the selected location and be distributed via the cable system to subscribers in the Borough. These cables, wires, lines and other signal distribution equipment shall be collectively known as the "return line." Blue Ridge shall distribute the video signals for the EG channel in high-quality resolution and shall cablecast the signals on the digital basic service tier.
(4) 
The Borough and Blue Ridge agree that any and all costs incurred by Blue Ridge for providing the EG channel and supporting such channel, including any and all equipment, maintenance and repair, may be designated as "costs of franchise requirements" or "external costs" as defined by the FCC, except that it is mutually agreed that such costs shall not be itemized on subscribers' bills.
(5) 
Blue Ridge shall not be obliged to provide the Township with studio equipment (i.e., camera, lights, microphones, office furnishings, etc.) under this EG channel provision.
C. 
System capacity. During the term of this agreement, Blue Ridge's cable system shall be capable of providing a minimum of 70 channels of video programming with reception available to its subscribers in the franchise area that meets the FCC's technical standards.
D. 
System specifications. Blue Ridge shall maintain and operate a cable system(s) covering the Borough which utilizes at the time of the effective date fiber optic receiver nodes located throughout the plant that divides the distribution of cable signals to subscribers in a manner which provides high quality programming signals and reliable service. Blue Ridge represents and warrants that this cable system is built for digital television standards with a bandwidth no less than 750 MHz with addressable technology with video channels reserved for digital or analog transmission and with sufficient portion of said bandwidth delivering reliable two-way cable services.
E. 
New services.
(1) 
Throughout the term of this agreement, Blue Ridge shall construct, operate, maintain and upgrade the cable system consistent with the following provisions: Blue Ridge has recently upgraded its cable system within the Borough and in the surrounding communities. In the event that additional future upgrades are performed in any communities served by Blue Ridge in Lancaster County, Pennsylvania, the Borough shall have the option to request a similar future upgrade. The Borough will receive new services, associated equipment and facilities without request to the extent reasonably feasible; otherwise, Blue Ridge will provide the service as soon as practical whenever the Borough provides written notice to Blue Ridge of its request for such service(s), associated equipment and facilities and after both parties determine that such service(s), associated equipment and facilities are provided in any of the communities identified in Exhibit B.[2] The Borough may not make such request more than one year after receiving an annual report, as referenced below. Blue Ridge shall be in compliance with this provision as long as the technical quality of the services, associated equipment and facilities is substantially comparable to the communities identified in Exhibit B.
[2]
Editor's Note: Exhibit B is included at the end of this chapter.
(2) 
Within 180 days from the third anniversary of the effective date of this agreement and annually thereafter, the Borough may request from Blue Ridge a written report describing new services. Upon such request, Blue Ridge shall provide the Borough with a report describing any and all new services, associated equipment and facilities which have been introduced in the prior year in the communities identified in Exhibit B, and for purposes of information only shall provide information regarding new services, associated equipment and facilities introduced by Blue Ridge within the service area in the prior year. Notwithstanding the foregoing, Blue Ridge shall not be required to provide any new services, associated equipment and facilities unless and until the Borough has approved a rate plan, where such approval is required by applicable law, that will allow full recovery of the cost of providing any such new services over the then remaining term of the Franchise or over five years, whichever is longer.

§ A204-10 Subscriber service rates.

To the extent permitted by Section 623 of the Cable Act, 47 U.S.C. § 543, and the regulations promulgated thereunder, and to the extent permitted by future amendments to the Cable Act, the Borough hereby reserves the right to regulate the rates charged by Blue Ridge for cable service provided by the cable system, to enforce regulations prescribed by the FCC, and to file complaints challenging a rate as unreasonable to the extent permitted by federal and state law including, but not limited to, the Cable Act.

§ A204-11 Transfer, assignment and foreclosure.

A. 
The Franchise herein granted is personal to Blue Ridge. It cannot be transferred, leased, assigned or disposed of as a whole, or in part, either by sale of stock, forced sale, merger, consolidation, change in control of Blue Ridge, or otherwise, without the prior written consent of the Borough expressed by ordinance, which consent shall not be unreasonably withheld, and then only under such conditions as may be therein prescribed. Subject to compliance by the transferee or assignee with the provisions of Subsection E below, no such consent shall be required for a transfer in trust, by mortgage, hypothecation, or by assignment of any right, title, or interest of Blue Ridge in the franchise or in the cable system in order to secure indebtedness; or a transfer to an entity presently owned and/or controlled by Blue Ridge. For purposes of this Subsection A only, the phrase "owned and/or controlled" shall mean an instance where Blue Ridge or one of its subsidiaries is the majority owner of 51% or more of the voting stock of the transferee or assignee or where Blue Ridge has and continues to have the right to make management decisions concerning the transferee or assignee.
B. 
Blue Ridge shall make written application to the Borough for the Borough's consent described in Subsection A above. As part of such application, Blue Ridge shall provide the Borough with all information required by FCC Form 394 and any other applicable federal, state and local laws and regulations regarding transfer or assignment or change of control.
C. 
Any foreclosure or judicial sale of all, or any part, of the cable system shall be considered a default under this agreement. Initiation of any such proceedings shall be treated as a notification of a change of control of Blue Ridge.
D. 
The consent of the Borough to any transfer or assignment or change of control as described above shall be provided only after a public hearing before Borough Council. Blue Ridge shall be given notice of any such public hearing, and Blue Ridge shall be afforded an opportunity to be heard at any such hearing.
E. 
Any consent by the Borough for any transfer or assignment or change of control described above shall not be effective until the proposed transferee or assignee shall have executed a legally binding document stating that it shall be bound by all the terms and conditions contained in this agreement.
F. 
The Borough shall have the right to terminate this franchise 120 days after the election or appointment of a receiver or trustee to take over and conduct the business of Blue Ridge, whether in receivership, reorganization, bankruptcy, or other action or proceedings, unless such receivership or trusteeship shall have been vacated prior to the expiration of the 120 days, or unless:
(1) 
Within 120 days after the election or appointment, such receiver or trustee shall have fully complied with all provisions of this agreement and remedied all defaults thereunder; and
(2) 
Within said 120 days, such receiver or trustee shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this agreement.

§ A204-12 Franchise violations, damages and revocation.

A. 
Violations.
(1) 
If the Borough has reason to believe that Blue Ridge violated any provision of this agreement, it shall notify Blue Ridge in writing, by certified mail, of the nature of such violation and the section of this agreement which it believes has been violated.
(2) 
Blue Ridge shall have 90 days to cure or commence to cure such violation after written notice is received by taking appropriate steps to comply with the terms of this agreement. If the nature of the violation is such that it cannot be fully cured within 90 days due to circumstances outside of Blue Ridge's control, the period of time in which Blue Ridge must cure the violation shall be extended by the Borough in writing for such additional time necessary to complete the cure, provided that Blue Ridge shall have promptly commenced to cure and is diligently pursuing its efforts to cure in the reasonable judgment of the Borough. If Blue Ridge is given written notice once in accordance with Subsection A(1) above, the Borough need not notify Blue Ridge a second time for the same violation, and Blue Ridge shall be liable for liquidated damages in accordance with Subsection B without an additional opportunity to cure. Notwithstanding the foregoing, Blue Ridge shall not be held liable or responsible under this agreement for work delays caused by waiting for utility providers to service or monitor their own utility poles on which Blue Ridge's cable and/or equipment is attached, as well as for unavailability of materials and/or qualified labor to perform the work necessary.
(3) 
If Blue Ridge, in good faith, disputes any alleged violation, it shall so notify the Borough within 30 days of the receipt of a notice sent pursuant to Subsection A(1) of this section. The notice shall identify of the nature of the dispute. In the event of a dispute regarding a violation, liquidated damages shall be assessed retroactively to the date of violation only if a court of competent jurisdiction makes a determination of violation or if Blue Ridge and the Borough reach an agreement which provides for liquidated damages to be assessed against Blue Ridge.
B. 
Liquidated damages.
(1) 
Because Blue Ridge's failure to comply with provisions of this agreement may result in injury to the Borough and because it will be difficult to measure the extent of such injury, the Borough may assess liquidated damages against Blue Ridge in the following amounts provided Blue Ridge has had an opportunity to cure in accordance with Subsection A(2). Such damages shall not be a substitute for specific performance by Blue Ridge. Such damages shall not be a substitute for specific performance by Blue Ridge or for other penalties imposed by other laws or regulation.
(2) 
For the liquidated damages set forth in this section, the maximum period for assessing liquidated damages for each single occurrence of noncompliance shall be 60 days. The first day for which damages may be assessed, if there has been no cure after the end of the applicable cure period, shall be the day after the end of the applicable cure period.
(3) 
The exercise of liquidated damages by the Borough shall not release Blue Ridge from its obligations or from any liability under this agreement, except: with regard to any breach for which liquidated damages are paid as provided in this section; or as necessary to avoid duplicative recovery from or payments by Blue Ridge. During such time period as the Borough elects to assess liquidated damages for an alleged breach, that remedy shall be the sole remedy for the breach for that time period. Nothing contained in this section shall be construed to permit duplicative recovery from or payment by Blue Ridge.
(a) 
For failure to comply with the technical requirements: $150 per day for each day the violation continues;
(b) 
For failure to provide and maintain cable service: $100 per day for each day the violation continues;
(c) 
For failure to obtain and maintain construction permits: $50 per day for each day the violation continues;
(d) 
For failure to make repairs and restorations: $100 per day for each day the violation continues;
(e) 
For failure to disconnect, relocate, or remove equipment: $100 per day for each day the violation continues;
(f) 
For failure to obtain permission for removal of trees: $100 per day for each day the violation continues;
(g) 
For failure to comply with any customer service standard set forth in § A204-6: $100 per day for each day the violation continues;
(h) 
For failure to cooperate with the right of inspection: $150 per day for each day the violation continues;
(i) 
For failure to submit reports in a timely fashion: $50 per day for each day the violation continues;
(j) 
For failure to provide a performance bond: $200 per day for each day the violation continues;
(k) 
For failure to carry all the insurance required: $150 per day for each day the violation continues;
(l) 
For failure to comply with transfer or renewal provisions: $ 150 per day for each day the violation continues; and
(m) 
For failure to comply with removal of system provision: $300 per day for each day the violation continues.
C. 
Performance bond.
(1) 
Blue Ridge shall obtain, at its sole cost and expense, within 30 days of the execution of this franchise, and shall maintain during the franchise term, a performance bond running in favor of the Borough to secure faithful performance by Blue Ridge of any and all obligations under this agreement. Such financial security shall be issued by a bonding company in the form of a surety bond provided that said bonding company is authorized to conduct such business within the commonwealth and is listed on United States Treasury Circular 570. This performance bond, however, shall not limit the liability of Blue Ridge for any failure to perform its obligations under this agreement.
(2) 
The performance bond shall be in the amount of $25,000. Blue Ridge shall not reduce, cancel, or change said bond from the requirements contained herein without the express prior written permission of the Borough.
(3) 
The Borough shall make no claim against the Bond unless and until a court of competent jurisdiction makes a determination that damages (whether liquidated damages or otherwise) are due and payable to the Borough.
D. 
Revocation.
(1) 
In addition to the other rights, remedies and powers reserved or retained by the Borough under this agreement or otherwise, the Borough reserves the right to lawfully terminate the franchise and all rights and privileges of Blue Ridge or any successor thereto in the event of a material breach of the terms and conditions of this agreement, in accordance with the notice and opportunity to cure provisions. In interpreting this agreement, material provisions shall include all provisions labeled as such and all others, which, under all the facts and circumstances indicated, are a significant provision of this agreement. A material breach by Blue Ridge shall include, but is not limited to, the following acts and omissions:
(a) 
Blue Ridge knowingly practices any fraud or deceit upon the Borough in its operation of its cable system or any other activities pursuant to this agreement;
(b) 
Blue Ridge repeatedly fails, after notice and opportunity to cure, to maintain signal quality pursuant to the standards provided for by the FCC or the technical requirements set forth in this agreement;
(c) 
Blue Ridge fails to remit a franchise fee or other payment together with any requisite statement or certification.
(d) 
Blue Ridge fails to operate over 25% of the cable system (as determined by lineal miles or portions thereof) for a period in excess of 15 consecutive days except when approval of such interruption is obtained from the Borough.
(e) 
A court of competent jurisdiction orders the assumption or custody or sequestration of all or a significant part of the cable system.
(f) 
Blue Ridge fails to maintain the required insurance and performance bond.
(g) 
Blue Ridge fails to comply with any federal, state, county or Borough law, code, ordinance, rule or regulation which has a significant impact on subscribers.
(2) 
The foregoing shall not constitute a violation of a material term or condition if the violation occurs without the fault of Blue Ridge or occurs as a result of a force majeure or of circumstances beyond its control. Blue Ridge shall not be in violation of this agreement and no revocation shall be effected if Blue Ridge is prevented from performing its duties and obligations or observing the terms and conditions of this Franchise by any Acts of God, labor disputes, manufacturers' or contractors' inability to timely provide personnel or material or other causes of like or different nature beyond the control of Blue Ridge. Furthermore, the parties hereby agree that it is not the intention of the Borough to subject Blue Ridge to revocation by the Borough where the violation was a good faith error that resulted in no or minimal negative impact on subscribers within the service area, or where strict performance would result in practical difficulties and hardship to Blue Ridge which outweigh the benefit to be derived by the Borough or subscribers.
(3) 
This franchise may be revoked only by a written decision of Borough Council after an appropriate public hearing affording Blue Ridge due process and full opportunity to be heard, to introduce evidence, to question witnesses and to respond to any notice of grounds to terminate in accordance with federal law. All notice requirements shall be met by providing Blue Ridge at least 60 days' prior written notice, having been served upon Blue Ridge by certified mail, return receipt requested, of any public hearing concerning the proposed revocation of this franchise. Such notice shall state the grounds for revocation. Borough Council, after a public hearing and upon finding the existence of grounds for revocation, may either declare this franchise terminated or excuse such grounds upon a showing by Blue Ridge of mitigating circumstances or good cause for the existence of such grounds. Nothing herein shall be deemed to be a waiver of Blue Ridge's rights under federal and state law with regard to revocation of a cable franchise.
E. 
Equitable and other relief. In addition to or in lieu of the penalties provided in § A204-12B of this agreement, the Borough may commence actions in equity or at law for violations of this agreement.
F. 
Removal of equipment. Upon abandonment of its system or the voluntary relinquishment of the franchise granted under this agreement, the Borough shall have the right to require that Blue Ridge remove its supporting structures, poles, transmission and distribution systems and other appurtenances from the streets, ways, lanes, alleys, parkways, bridges, highways and other public and private places, in, over, under or along which they are installed and shall restore the areas to their original condition. If such removal is not completed within six months of such abandonment or relinquishment, the Borough or property owner may deem any property not removed as having been abandoned and the Borough may remove it at Blue Ridge's cost.

§ A204-13 Compliance with applicable laws and ordinances.

Blue Ridge shall, at all times during the term of this agreement, be subject to the exercise of the police power by the Borough and to such lawful ordinances, rules and regulations as the Borough shall hereafter adopt pursuant to such power(s). There is hereby reserved to the Borough every right and power which is required to be herein reserved or provided by any ordinance, rule or regulation of the Borough, and Blue Ridge shall comply with any lawful action or lawful requirements of the Borough in its exercise of such right or power heretofore or hereafter enacted or established. Blue Ridge shall comply with all ordinances, codes, statutes, rules and regulations of the Borough, to the extent they are not contrary to the terms of this agreement, the County of Lancaster, the Commonwealth of Pennsylvania, and the United States of America which are now in effect or hereafter enacted.

§ A204-14 Waiver.

A. 
No course of dealing between the Borough and Blue Ridge nor the failure of the Borough to enforce or to timely enforce any provision of this agreement or any federal, state or local law, code, ordinance, rule or regulation shall be deemed to be a waiver of, or acquiescence in the actions of Blue Ridge in contravention of, that or any other provision, law, code, ordinance, rule or regulation.
B. 
No course of dealing between the Borough and Blue Ridge nor the failure of Blue Ridge to enforce or to timely enforce any provision of this agreement or any federal, state or local law, code, ordinance, rule or regulation shall be deemed to be a waiver of, or acquiescence in the actions of the Borough in contravention of, that or any other provision, law, code, ordinance, rule or regulation.
C. 
Any waiver of any provision of this agreement or federal, state or local law, code, ordinance, rule, or regulations shall be in writing and operate only as a waiver as expressed in such writing, signed by both parties, and shall not be of any other force or effect.

§ A204-15 Miscellaneous provisions.

A. 
This franchise is subject to all orders, rules and/or regulations of the FCC or other federal or state agencies applicable to a cable system and such other orders, rules and/or regulations as any such agency or agencies may from time to time adopt. In the event any such agency ceases to exist or revokes any applicable orders, rules and/or regulations, Blue Ridge and the Borough shall meet and discuss what amendments, if any, would be appropriate to be made to this agreement.
B. 
Nothing herein contained shall be construed to be a representation by the Borough, or any of its officers, agents or employees, that the authorization of this nonexclusive franchise is within the authority of the Borough to grant. Further, the granting of this franchise under this agreement by ordinance shall not be construed as an undertaking or guarantee by the Borough of the efficiency of Blue Ridge or maintenance of service by Blue Ridge. It is fully understood that the Borough assumes no responsibility for the acts or omissions of Blue Ridge other than to require, to the extent the Borough elects to do so, compliance with this agreement.
C. 
Blue Ridge shall comply with all applicable federal and state antitrust laws and regulations.
D. 
If for any reason of force majeure, Blue Ridge is unable in whole or in part to carry out its obligations hereunder, Blue Ridge shall not be deemed in violation of this agreement during the continuance of such inability. The term "force majeure" as used herein shall have the following meaning: Acts of God; acts of public enemies, orders of any kind of the government of the United States of America or of the Commonwealth of Pennsylvania or any of their departments, agencies, political subdivisions, or officials, or any civil or military authority; insurrections; riots; strikes or labor disputes; epidemics; landslides; lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; tornados; tsunamis; washouts; droughts or other catastrophic act of nature; explosions; and partial or entire failure of utilities.
E. 
All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first-class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows:
The Borough:
Denver Borough
501 Main Street
Denver, PA 17517
with a courtesy copy to:
Morgan, Hallgren, Crosswell & Kane, P.C.
700 North Duke Street
P.O. Box 4686
Lancaster, PA 17604-4686
Blue Ridge:
Blue Ridge Communications, Inc.
804 Academy Heights Avenue
P.O. Box 150
Ephrata, PA 17522
Attention: Government Affairs
F. 
This franchise agreement, including all exhibits, embodies the entire understanding and agreement of the Borough and Blue Ridge with respect to the subject matter hereof and supersedes all prior understandings, agreements and communications, whether written or oral. All ordinances or parts of ordinances that are in conflict with the provisions of this franchise agreement are superseded by this franchise agreement.
G. 
If any section, subsection, sentence, clause, phrase, or other portion of this franchise agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.
H. 
This franchise agreement shall be deemed to be executed in the Borough of Denver, Lancaster County, Pennsylvania, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, as applicable to contracts entered into and performed entirely within the commonwealth.
I. 
No provision of this franchise agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the Borough and Blue Ridge, which amendment shall be authorized on behalf of the Borough through the adoption of an appropriate resolution or order by the Borough, as required by applicable law.
J. 
The effective date of this agreement shall be the date of ordination and enactment of the agreement by ordinance duly enacted by Borough Council.