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 1-9-2017 by Ord. No. 637.[1] Amendments noted where applicable.]
Attachment 1 - Exhibit A Complimentary Service Locations
[1]
Editor's Note: This ordinance superseded former Ch. A204, Cable Television Franchise, adopted 8-31-2009 by Ord. No. 587.

§ A204-1 Definitions.

The following terms used in this franchise shall have the following meanings:
AFFILIATED ENTITY
Any corporation, partnership or other business entity that owns or controls, is owned or controlled by, or is under common ownership or control with Blue Ridge.
BASIC SERVICE
The service tier that includes at least the retransmission of local broadcast television signals and any educational and governmental ("EG") access channel.
CABLE ACT
Title VI of the Communications Act of 1934, 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, as it may, from time to time, be 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 the Borough, but such term does not include:
A. 
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
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 the provisions of Title II of the Communications Act, except that such facility shall be considered a cable system (other than for purposes of Section 621 of the Cable Act) to the extent that facility is used in the transmission of video programming directly to subscribers unless the extent of that use is solely to provide interactive on-demand services;
D. 
An open video system that complies with Section 653 of the Cable Act;
E. 
Any facilities of any electric utility used solely for operating its electric utility systems; or
F. 
Any equipment or facilities used to transmit wireless video, telecommunications, or broadband service.
CHANNEL
A portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as a television channel is defined by FCC regulation.
COMMUNICATIONS ACT
The federal Communications Act of 1934, as amended, and as it may, from time to time, be further amended.
COMPLAINT
Any written (including e-mail directed to a specific department) communication by a subscriber expressing dissatisfaction with any aspect of Blue Ridge's business or the operation of its cable system.
DROP
The coaxial or fiber optic or other cable that connects a home or building to the cable system.
EDUCATIONAL AND GOVERNMENTAL (EG) CHANNEL
An access channel that consists of local educational and/or governmental programming.
EMERGENCY
A condition that either:
A. 
Constitutes a clear and immediate danger to the health, welfare, or safety of the public; or
B. 
Has caused or is likely to cause the cable system in the public rights-of-way to be unusable and result in loss of the services provided.
FCC
Federal Communications Commission.
FORCE MAJEURE
Acts of God; acts of public enemies, including terrorist attacks; orders of any kind of the government of the United States of America or the Commonwealth of Pennsylvania or any of their departments, agencies, political subdivisions, or officials, or any civil or military authority; insurrections; riots; labor strikes; epidemics; landslides; lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; explosions; unavailability of materials or equipment; and partial or entire failure of facilities.
FRANCHISE
The right granted by the Borough to construct, operate and maintain a cable system within the corporate limits of the Borough as embodied in the terms and conditions of this agreement.
FRANCHISE FEE
The fee that Blue Ridge remits to the Borough for the use of the Borough's public rights-of-way pursuant to Section 622 of the Cable Act, 47 U.S.C. § 542, and § A204-6A of this agreement.
A. 
All revenue received directly or indirectly by Blue Ridge or its affiliated entities arising from, attributable to, or in any way derived from the operation of Blue Ridge's cable system in the Borough to provide cable services. Gross revenues shall include, but are not limited to, the following:
(1) 
Basic service fees;
(2) 
Fees charged to subscribers for any service tier other than basic service;
(3) 
Fees charged for premium services;
(4) 
Fees for all digital video tiers;
(5) 
Fees for video-on-demand;
(6) 
Fees charged to subscribers for any optional, per-channel or per-program services;
(7) 
Revenue from the provision of any other cable services;
(8) 
Charges for installation, additional outlets, relocation, disconnection, reconnection and change-in-service fees for video or audio programming;
(9) 
Fees for changing any level of cable service programming;
(10) 
Fees for service calls;
(11) 
Inside wire maintenance fees;
(12) 
Service plan protection fees;
(13) 
Convenience fees;
(14) 
Early termination fees;
(15) 
Fees for leased access channels;
(16) 
Charges based on the sale or lease of any portion of the cable system for cable service;
(17) 
Rental or sales of any and all equipment, including converters and remote control devices;
(18) 
Any and all locally derived advertising revenues;
(19) 
Revenues or commissions from locally derived home shopping channels;
(20) 
Revenue from interactive television services;
(21) 
Fees for any and all music services;
(22) 
Broadcast retransmission fees;
(23) 
Late payment fees;
(24) 
Billing and collection fees;
(25) 
NSF check charges; and
(26) 
Franchise fees.
B. 
Notwithstanding the foregoing, nothing herein shall be interpreted to enlarge the Borough's right to collect franchise fees beyond the authority granted to the Borough by the Cable Act; and the Borough acknowledges that revenues from advertising and home shopping channels are received based on zip codes that do not conform to Borough boundaries. For the purpose of calculating franchise fees, these revenues will be prorated among franchise authorities based on the number of subscribers within each.
C. 
Gross revenues shall not include bad debts, investment income, refunded deposits, or any taxes on services furnished by Blue Ridge and imposed directly upon any subscriber or user by the Borough, state, federal or other governmental unit ("gross revenue exclusions"). Gross revenue exclusions will be determined according to generally accepted accounting principles ("GAAP") as promulgated and defined by the Financial Accounting Standards Board ("FASB").
HD
High-definition format.
LEASED ACCESS OR COMMERCIAL ACCESS CHANNEL
Any channel on Blue Ridge's cable system designated for use by any entity that is unaffiliated with Blue Ridge pursuant to Section 612 of the Cable Act, 47 U.S.C. § 532.
MULTIPLE-DWELLING UNITS or MDUs
Any building, buildings or area occupied by dwelling units, appurtenances thereto, grounds and facilities, which dwelling units are intended or designed to be owned, occupied or leased for occupation, or actually occupied, as individual homes or residences for three or more households.
NORMAL BUSINESS HOURS
Those hours during which most similar businesses in the community are open to serve subscribers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours.
NORMAL OPERATING CONDITIONS
Business conditions within Blue Ridge's service department which are within the control of Blue Ridge. Those conditions that are not within the control of Blue Ridge include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions.
OUTLET
An interior receptacle that connects a television set to the cable system.
PROGRAMMING
Any video or audio signal carried over the cable system as part of a cable service and is generally considered comparable to programming provided by a television broadcast station.
PUBLIC RIGHTS-OF-WAY
The surface and the area across, in, over, along, under and upon the public streets, roads, lanes, avenues, alleys, sidewalks, bridges, highways and other rights-of-way, as the same now or may thereafter exist, which are under the jurisdiction or control of the Borough.
SERVICE INTERRUPTION
The loss of picture or sound on one or more channels.
SUBSCRIBER
A person or entity who contracts with Blue Ridge for, and lawfully receives, the video signals and cable services distributed by the cable system.

§ A204-2 Grant of franchise.

A. 
Grant of authority. Pursuant to the Cable Act, the regulations of the FCC and Pennsylvania law, the Borough hereby grants a nonexclusive and revocable franchise to Blue Ridge. Subject to the terms and conditions contained herein, the Borough hereby grants to Blue Ridge the right to own, construct, extend, install, operate, maintain, upgrade and rebuild a cable system, including such wires, cables, fiber, conductors, ducts, conduits, amplifiers, pedestals, attachments and other equipment as is necessary and appropriate to the operation of the cable system in the public rights-of-way, including property over which the Borough has a sufficient easement or right-of-way, for the purpose of reception, transmission, amplification, origination, distribution or redistribution of video and audio signals to provide cable services as permitted by applicable law.
B. 
Term of franchise. The term of this agreement shall be for a period of seven years commencing on the effective date and expiring on January 9, 2024, unless the franchise is terminated prior to the expiration date in accordance with the terms and conditions of this agreement.
C. 
Service classification and related authority. Blue Ridge acknowledges and agrees that the system over which its video service is delivered is a cable system for which the terms and conditions shall apply for at least the term of this agreement. Blue Ridge further acknowledges and agrees that the grant of authority to operate a wired cable system does not include or preclude authority to provide wireless video services.
D. 
Representations and warranties.
(1) 
Blue Ridge represents, warrants and acknowledges that, as of the effective date:
(a) 
Blue Ridge is duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania;
(b) 
Blue Ridge has the requisite power and authority under applicable law and its bylaws and articles of incorporation and/or other organizational documents, is authorized by resolutions of its Board of Directors or other governing body, and has secured all consents which are required to be obtained as of the effective date, to enter into and legally bind Blue Ridge to this agreement and to take all actions necessary to perform all of its obligations pursuant to this agreement;
(c) 
This agreement is enforceable against Blue Ridge in accordance with the provisions herein, subject to applicable state and federal laws and regulations;
(d) 
There is no action or proceeding pending or threatened against Blue Ridge which would interfere with its performance or its ability to perform the requirements of this agreement;
(e) 
Pursuant to Section 625(f) of the Cable Act, as of the effective date, the performance of all terms and conditions in this agreement is commercially practicable.
E. 
Nonexclusivity. This franchise granted to Blue Ridge shall be nonexclusive. Nothing in this agreement shall affect the right of the Borough to grant other franchises to construct, operate or maintain a cable system.
F. 
Level playing field.
(1) 
If the Borough grants an additional franchise for construction and/or operation of a cable system or open video system, and such additional franchise imposes any material obligations, as defined below, that are more favorable or less burdensome to the competitive entity than those contained in this agreement, then Blue Ridge may request that the Borough amend this agreement to make such material obligation(s) consistent with the franchise of the competitive entity.
(2) 
Solely for the purposes of this section, "material obligations" are limited to the following: Blue Ridge's obligations under this agreement to pay franchise fees as set forth in § A204-6; Blue Ridge's obligations under this agreement to meet the subscriber service standards as set forth in § A204-4; and Blue Ridge's obligations under this agreement to provide service throughout the Borough as set forth in § A204-3B within a reasonable period of time after execution of the additional franchise.
G. 
Franchise subject to federal, state and local laws. This franchise is subject to and shall be governed by all lawful and applicable provisions of federal, state and local laws and regulations. This franchise is further subject to all applicable ordinances and resolution of the Borough. Without waiving any of its rights, the Borough agrees that, to the extent any term of this agreement is inconsistent with the terms of any Borough cable franchise ordinance existing as of the effective date, this agreement shall control.

§ A204-3 System construction, operation and maintenance.

A. 
Technical requirement.
(1) 
Blue Ridge shall operate, maintain, construct and extend the cable system so as to offer one-way and two-way cable services for all programming services throughout all parts of the Borough where the density requirements of Subsection B are met. The cable service provided by the cable system shall be delivered in accordance with FCC standards. The cable system shall meet or exceed any and all technical performance standards of the FCC, the National Electrical Safety Code, the National Electric Code and any other applicable federal laws and regulations and the laws, ordinances and construction standards of the Commonwealth of Pennsylvania and the generally applicable laws, ordinances and construction standards of the Borough.
(2) 
Standby power at the head end(s) shall be provided in the event of a service interruption. Standby power must activate automatically upon the failure of commercial utility power.
B. 
Area to be served.
(1) 
Blue Ridge shall make cable service available to every dwelling occupied by a person requesting cable service, provided that Blue Ridge is able to obtain from the property owners any necessary easements and/or permits in accordance with Section 621(a)(2) of the Cable Act. Blue Ridge shall extend the cable system into all areas within the Borough where there are a minimum of 30 subscribers per linear plant mile of aerial cable and 70 subscribers per underground mile of cable, calculated from the end of the nearest trunk line. For the purpose of this section, a person becomes a subscriber by signing an agreement in which the person agrees to become a subscriber upon completion of the line extension. Blue Ridge shall complete said extensions within three months of written notification to Blue Ridge by the Borough that an area has met the minimum density standard set forth herein (weather permitting). Blue Ridge's obligation hereunder shall be subject to the timely performance of walk-out, make-ready and location of all underground utilities. Furthermore, Blue Ridge shall not be compelled to overbuild any other wireline video provider also serving in the Borough.
(2) 
Any dwelling unit within 200 feet aerial distance from the main distribution line shall be entitled to a standard installation rate. For any dwelling unit in excess of 200 feet aerial distance from the main distribution line or that requires underground installation, Blue Ridge shall extend the cable service at Blue Ridge's prevailing rates.
(3) 
The Borough has the right to require Blue Ridge to place wires and/or equipment underground, provided that the Borough imposes such requirement on all similarly situated entities. All installations of wires and/or equipment by Blue Ridge shall be underground in those areas of the Borough where the wires and/or equipment of similarly situated entities (i.e., telephone and electric utilities) are underground; provided, however, that such underground locations are capable of accommodating Blue Ridge's facilities without technical degradation of the cable system's signal quality. Blue Ridge shall not be required to construct, operate, or maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices, amplifiers, power supplies, or pedestals.
C. 
Cable system specifications.
(1) 
Blue Ridge has designed, constructed and shall maintain a cable system that has been built for digital television standards with the capability of no fewer than 150 video channels and shall allocate a sufficient portion of said bandwidth to deliver two-way cable services.
(2) 
Blue Ridge reserves the right to alter, adjust, modify, rebuild, upgrade, redesign, or otherwise reconfigure the cable system at any time during the term of the agreement, provided that no alteration, adjustment, modification, rebuild, upgrade, redesign or other reconfiguration of the cable system shall have the effect of reducing the technical capabilities of the cable system as set forth in Subsection A.
D. 
System tests. Blue Ridge shall conduct proof of performance and other system tests as required by the FCC and retain written reports of the results of any such tests.
E. 
Emergency Alert System. Blue Ridge shall comply with the Emergency Alert System requirements of the FCC.
F. 
Rate discrimination. All Blue Ridge residential subscriber rates and charges shall be published and shall not discriminate among persons in the Borough under similar circumstances and conditions. Blue Ridge shall establish similar rates and charges for all residential subscribers receiving similar services, regardless of race, color, religion, age, sex, marital status, income or economic status, national origin, sexual orientation, physical or mental disability, or geographic location within the Borough. Nothing in this Subsection F shall be construed to prohibit:
(1) 
The temporary reduction or waiving of rates and charges in conjunction with promotional campaigns;
(2) 
The offering of reasonable discounts to senior citizens or discounts to economically disadvantaged citizens;
(3) 
The establishment of different and nondiscriminatory rates and charges and classes of services for commercial subscribers, as well as different, nondiscriminatory monthly rates for classes of commercial subscribers;
(4) 
The establishment of reduced bulk rates for residential subscribers residing in multiple-dwelling units; or
(5) 
Any requirement of equipment deposits or prepayment of service because of poor credit standards, or both.
G. 
Service to multiple-dwelling units ("MDUs"). Blue Ridge and the Borough hereto acknowledge and agree that installation and provision of cable service to MDUs are subject to a separate negotiation between the landlord, owner or governing body of any such MDU and Blue Ridge, which negotiations shall be conducted in accordance with the procedures set forth in the Cable Act, as amended, applicable FCC regulations, the Pennsylvania Landlord Tenant Act of 1951, as amended, and the applicable provisions of 68 P.S. § 250.501 et seq.
H. 
Repairs and restoration.
(1) 
Whenever Blue Ridge or any of its agents, including any contractor or subcontractor, takes up or disturbs any pavement, sidewalk or other improvement of any public or private property, the same shall be replaced and the surface restored in as good condition as before the disturbance within 10 business days of the completion of the disturbance, weather permitting. Upon failure of Blue Ridge to comply within the time specified, including notice to cure, and the Borough having notified Blue Ridge in writing of the restoration and repairs required, the Borough may cause proper restoration and repairs to be made, and the reasonable expense of such work shall be paid by Blue Ridge upon demand by the Borough.
(2) 
Whenever Blue Ridge or any agent, including any contractor or subcontractor, shall install, operate or maintain equipment, cable, or wires, it shall avoid damage and injury to property, including structures, improvements and trees in and along the routes authorized by the Borough if required for the proper installation, operation and maintenance of such equipment, cable, or wires. Blue Ridge shall promptly repair and restore any public or private property that is damaged as a result of construction, installation, repair or maintenance of the cable system within 10 business days, weather permitting.
(3) 
Blue Ridge's operation, construction, repair and maintenance personnel, including all contractors and subcontractors, shall be trained in the use of all equipment and the safe operation of vehicles. Such personnel shall follow all safety procedures required by all applicable federal, state and local laws and regulations. All areas of the cable system shall be inspected in accordance with such applicable federal, state and local laws and regulations so as to prevent hazardous conditions or risks to safety for the public and/or operating and maintenance personnel. Blue Ridge shall install and maintain its wires, cables, fixtures, and other equipment in such a manner as shall not interfere with any installations of the Borough or any public utility serving the Borough.
(4) 
Should a public safety emergency occur as a result of, incident to, or connected with operation, construction, repair, or maintenance activities by Blue Ridge personnel, including all contractors and subcontractors, then such personnel shall immediately contact the applicable public safety emergency dispatcher (e.g., 9-1-1).
(5) 
Whenever Blue Ridge or any agent, including any contractor or subcontractor, shall disturb any pavement, sidewalk or other public property in order to perform any underground activity, it shall utilize the Pennsylvania One Call System prior to any such disturbance. Blue Ridge shall adhere to any additional undergrounding requirements which the commonwealth may establish in the future. Blue Ridge shall adhere to all requirements of the Pennsylvania Underground Utility Line Protection Act.
(6) 
All structures and all lines, equipment and connections in, over, under, and upon streets, sidewalks, alleys, and public and private ways and places of the Borough, wherever situated or located, shall at all times be kept and maintained in a safe and suitable condition and in good order and repair in accordance with customary industry standards and practices.
I. 
Service area maps. Upon request, Blue Ridge shall provide to the Borough for its exclusive use and shall maintain at its local offices a complete set of Blue Ridge service area strand maps of the Borough on which shall be shown those areas in which its facilities exist and the location of all streets. The strand maps shall be provided to the Borough in hardcopy and also, if requested and available, in an electronic GIS format which is compatible with the Borough's GIS format. The strand maps shall also designate where the cable wires and other equipment are aerial and where they are underground. Blue Ridge shall provide the Borough with updated maps within 30 days after any request by the Borough.
J. 
Use of Blue Ridge's poles and conduit. 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 right-of-way; provided that:
(1) 
Such use does not interfere with Blue Ridge's current use;
(2) 
Such use shall not be for providing telecommunications services in competition with Blue Ridge; and
(3) 
It shall be in Blue Ridge's discretion to require the Borough to remit a reasonable rental fee, provided that such rental fee does not exceed those paid to Blue Ridge by public utilities operating within the jurisdictional limits of the Borough.
K. 
Disconnection and relocation.
(1) 
Blue Ridge shall, at no cost to the Borough, protect, support, temporarily disconnect, relocate in the same street, or other public way and place, or remove from any street or any other public way or place, any of its property as required by the Borough or its designee by reason of traffic conditions, street construction, change or establishment of street grade, site distance visibility, the construction of any public improvement or structure, or any other reason related to public health, safety and welfare.
(2) 
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.
L. 
Emergency removal of equipment.
(1) 
If, at any time, in case of fire or other disaster in the Borough, it shall be necessary, in the reasonable judgment of the Borough or its agent, to cut or move any of the wires, cable or equipment of the cable system, the Borough shall have the right to do so without cost or liability, provided that, wherever possible, the Borough shall give Blue Ridge notice and the ability to relocate wires, cable or other equipment.
(2) 
In cutting or moving any of the wires, cable or equipment of the cable system in the event of fire or other disaster, the Borough shall treat Blue Ridge the same as, and require no more of Blue Ridge than, any other similarly situated entity.
M. 
Tree trimming.
(1) 
Blue Ridge, or its agents, including contractors and subcontractors, shall have the authority to trim trees upon and overhanging the public rights-of-way so as to prevent the branches of such trees from coming in contact with the wires, cables, or other equipment of Blue Ridge. Any such tree trimming shall only be performed in accordance with applicable laws and regulations.
(2) 
If Blue Ridge or its agents, including contractors and subcontractors, wish to cut down and remove any tree or trees as may be necessary for the installation and/or maintenance of its equipment, it shall apply to the Borough for permission, with the exception of emergency situations as defined in § A204-1, and if permission is granted, shall perform such cutting and removal in accordance with the regulations of the Borough.
N. 
Channel capacity. Blue Ridge shall meet or exceed programming and channel capacity requirements set forth in this agreement and required by federal and state law and regulations.
O. 
Broadcast channels. To the extent required by federal law, Blue Ridge shall provide all subscribers with basic service, including, but not limited to: a) all broadcast television signals carried in fulfillment of the requirements of Section 614 of the Cable Act; b) the signals of qualified noncommercial educational television signals carried in fulfillment of the requirements of Section 615 of the Cable Act; and c) any educational and governmental channel pursuant to Section 611 of the Cable Act. All such signals shall be delivered to subscribers in accordance with FCC technical specifications.
P. 
Signal scrambling. Blue Ridge shall at all times comply with FCC regulations regarding scrambling or other encryption of audio and video signals.
Q. 
Continuity of service. Subscribers shall continue to receive service from Blue Ridge, provided their financial and other obligations to Blue Ridge are honored. Subject to force majeure provisions in § A204-9A, Blue Ridge shall use its best efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. For the purpose of construction, routine repairing or testing of the cable system, Blue Ridge shall use its best efforts to interrupt service only during periods of minimum use. When necessary service interruptions of more than 24 hours can be anticipated, Blue Ridge shall notify subscribers in advance of such service interruption along with providing subscribers with a pro rata credit for the time of such service interruption.
R. 
Parental control capability. Blue Ridge shall provide subscribers with the capability to control the reception of any video and/or audio channel on the cable system pursuant to Section 641 of the Cable Act.

§ A204-4 Subscriber service standards.

A. 
Office hours and telephone availability.
(1) 
Blue Ridge shall maintain a business office that is conveniently located and shall be open during normal business hours.
(2) 
Blue Ridge shall provide and maintain a toll-free telephone access line that will be available to subscribers 24 hours a day, seven days a week. Trained representatives shall respond to subscriber telephone inquiries during normal business hours. After normal business hours, the access line may be answered by a service or an automated response system. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day.
(3) 
Under normal operating conditions and during normal business hours, telephone answering time by a subscriber representative, including wait time, shall not exceed 30 seconds after the connection is made. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90% of the time, measured on a quarterly basis. Under normal operating conditions, the subscriber shall receive a busy signal less than 3% of the time.
(4) 
If an historical record of complaints indicates a clear failure to comply, Blue Ridge may be required to perform surveys to measure compliance with the telephone answering requirements above. If the Borough determines, after receiving complaints itself and/or receiving a record of complaints made to Blue Ridge in accordance with § A204-4E and/or § A204-5G(1), that there is a clear failure to comply with the telephone answering requirements above, the Borough shall notify Blue Ridge in writing that it must measure its compliance with these requirements for the next 90 days and report to the Borough with its results.
(5) 
Notwithstanding the foregoing, Blue Ridge will not be required to acquire equipment to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a failure to comply.
B. 
Installations and service calls.
(1) 
Blue Ridge shall maintain a staff of employees sufficient to provide adequate and prompt service to its subscribers. Blue Ridge shall require that any employee or agent, including any subcontractor, who personally visits any residential dwelling shall display a photo identification badge. Any vehicle used for installation, operation or maintenance activities by any Blue Ridge employee or agent, including any subcontractor, shall prominently display the Blue Ridge logo.
(2) 
Standard installations will be performed within seven business days after an order has been placed. "Standard" installations are those aerial installations that are located up to 125 feet from the existing main distribution line.
(3) 
Upon scheduling of appointments with the subscriber for installations, service calls and other activities, Blue Ridge shall provide the subscriber with either a specific time or an "appointment window" of a maximum of four hours during normal business hours. Blue Ridge may schedule service calls and installation activities outside of normal business hours at a time that is convenient for the subscriber.
(4) 
Blue Ridge may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment. If, at any time, an installer or technician is running late, an attempt to contact the subscriber must be made prior to the time of the appointment. If the appointment must be rescheduled, it must be done so at a time that is convenient for the subscriber.
C. 
Notices.
(1) 
Blue Ridge shall provide written notice to each subscriber upon initial subscription or installation, and at intervals not less than one per year thereafter, to each subscriber and at any time upon request, regarding 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) 
Channel positions of programming carried on the cable system;
(d) 
Installation and service maintenance policies;
(e) 
Instructions on how to use the cable service and any converters;
(f) 
Billing and subscriber complaint procedures;
(g) 
Blue Ridge's address, telephone number and office hours; and
(h) 
A notice of subscriber privacy rights as required by federal law.
(2) 
In accordance with applicable law, Blue Ridge shall notify subscribers and the Borough in writing of any changes in rates, programming services or channel positions a minimum of 30 days in advance of such changes, provided that such change is within the control of Blue Ridge. Blue Ridge shall 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) 
In accordance with federal law, Blue Ridge shall maintain a file available to the public containing all written notices provided to subscribers pursuant to the requirements contained herein by Blue Ridge during the previous 12 months.
D. 
Billing.
(1) 
Bills shall be clear, concise and understandable. Bills must be fully itemized, with itemizations including all applicable service tiers, equipment charges and any installation or repair charges. Bills 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 not assess late fees for nonpayment of a current bill until at least 30 days have elapsed since the mailing of the bill by Blue Ridge.
(3) 
The Borough hereby requests that Blue Ridge omit the Borough's name, address, and telephone number from subscriber bills as permitted by 47 CFR § 76.952.
E. 
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 within 30 days of its receipt at the local business office. Such response shall include the results of its inquiry into the subject matter of the complaint, its conclusions based on the inquiry, and its decision in response to the complaint.
(2) 
If the Borough is contacted directly about a subscriber complaint, it shall notify Blue Ridge promptly and in writing. When Blue Ridge receives such notification, the time period for Blue Ridge to respond as required by Subsection E(1) shall commence. If the Borough notifies Blue Ridge in writing, then Blue Ridge shall respond in writing within the time period specified in Subsection E(1).
(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, without a late fee or disconnection, 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 subscriber complaint records for inspection by the affected subscriber, which shall contain the date each complaint is received, the name and address of the affected subscriber, a description of the complaint, the date of resolution of the complaint, and a description of the resolution.
F. 
Disconnection. Blue Ridge may disconnect or terminate a subscriber's service for cause including, but not limited to, the following:
(1) 
If at least 30 days have elapsed from the due date of the bill that the subscriber has failed to pay; and
(2) 
If Blue Ridge has provided at least 10 days' written notice to the affected subscriber prior to disconnection, specifying the effective date after which cable services are subject to disconnection; and
(3) 
If there is no pending written dispute with Blue Ridge regarding the bill; or
(4) 
If at any time and without notice, Blue Ridge determines in good faith that the subscriber has tampered with or abused Blue Ridge's equipment or service or is engaged in theft of cable service; or
(5) 
If the subscriber has made threats of or engaged in violence against Blue Ridge employees or contractors.
G. 
Service interruptions.
(1) 
Excluding conditions beyond its control, Blue Ridge shall begin working on a service interruption promptly and in no event later than 24 hours after the interruption becomes known and shall diligently pursue it to completion. Notice of a service interruption of a single subscriber shall give rise to this obligation on behalf of Blue Ridge. All other service calls not affecting public health, safety or welfare shall occur within a maximum of 48 hours after notice to Blue Ridge or scheduled at the convenience of the subscriber.
(2) 
In the event that there is a service interruption to any subscriber for six or more consecutive hours and upon receipt of written or credible oral request, Blue Ridge shall grant such subscriber a pro rata credit or rebate, on a daily basis, of that portion of the service charge during the next consecutive billing cycle, or, at its option, apply such credit to any outstanding balance that is currently due.
H. 
Privacy. 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 and all other applicable federal and state privacy laws and regulations.

§ A204-5 Regulation by Borough.

A. 
Right to inspect.
(1) 
The Borough shall have the option, upon 30 business days written notice and during normal business hours, to inspect at the notice location for Blue Ridge specified in § A204-9C, all documents, records and other pertinent information maintained by Blue Ridge which relate to the terms of this agreement.
(2) 
In addition, Blue Ridge shall maintain for inspection by the public and the Borough all records required by the FCC and as specified in 47 CFR § 76.305 in the manner specified therein.
(3) 
All documents, records and other pertinent information subject to the right of inspection of the Borough and public and reporting in this § A204-5 may be purged after three years.
B. 
Right to conduct compliance review. No more than one time per calendar year, the Borough or its representatives may conduct a full compliance review with respect to whether Blue Ridge has complied with the material terms and conditions of this agreement, so long as it provides Blue Ridge with 30 days' written notice in advance of the commencement of any such review or public hearing. Such notice shall specifically reference the section(s) or subsection(s) of the agreement that is (are) under review, so that Blue Ridge may organize the necessary records and documents for appropriate review by the Borough. Within 30 days of a written request, Blue Ridge shall provide the Borough with copies of records and documents related to the cable compliance review.
C. 
Reserved authority. The Borough reserves the regulatory authority arising from the Cable Act and any other applicable federal or state laws or regulations. Nothing in this agreement shall remove, restrict or reduce the Borough's authority, rights and privileges it now holds, or which hereafter may be conferred upon it, including any right to exercise its police powers in the regulation and control of the use of the public rights-of-way.
D. 
Police powers. Blue Ridge's rights under this agreement are subject to the police powers of the Borough to adopt and enforce general laws and regulations necessary for the safety and welfare of the public. Such laws and regulations are separate and distinct from the terms and conditions contained in this agreement.
E. 
No limitation on taxing or fee authority. Nothing in this section or in this agreement shall be construed to limit the authority of the Borough to impose any tax, fee or assessment of general applicability. Such taxes, fees or assessments shall be in addition to franchise fees.
F. 
Permits. Blue Ridge shall apply to the Borough for all generally applicable required permits and shall not undertake any activities in the public rights-of-way subject to a permit without receipt of such permit, the issuance of which shall not be unreasonably withheld by the Borough. Blue Ridge shall not be required to obtain permits for cable service drops for individual subscribers or for servicing or installation of pedestals or routine maintenance that does not disturb surface grade or impact vehicular traffic. Blue Ridge shall pay any and all required permit fees.
G. 
Reporting. In addition to the other reporting requirements contained in this agreement, Blue Ridge shall provide the following reports to the Borough:
(1) 
Subscriber complaint reports. Within 30 days of a written request, Blue Ridge shall submit to the Borough a report showing the number of complaints, as defined in § A204-1, that required a work order and/or service call, originating from the Borough and received during the previous twelve-month reporting period, the dates they were received, summary descriptions of the complaints, the dates the complaints were resolved and summary descriptions of the resolutions. The reports may be in the form of "trouble reports" that are internally generated by Blue Ridge.
(2) 
Annual financial reports. Within 30 days of a written request, Blue Ridge shall submit to the Borough a statement from its auditors and certified by Blue Ridge's Chief Financial Officer that Blue Ridge is solvent and has the financial means to meet its obligations under this agreement.
(3) 
Government reports. Blue Ridge shall provide to the Borough, upon written request, copies of any and all communications, reports, documents, pleadings and notifications of any kind which Blue Ridge has submitted to any federal, state or local regulatory agencies if such documents relate specifically to Blue Ridge's cable system within the Borough. Blue Ridge shall provide copies of such documents no later than 30 days after their request.

§ A204-6 Compensation to Borough.

A. 
Franchise fees. Blue Ridge shall pay to the Borough an amount equal to 5% of the gross revenues derived from the operation of its cable system to provide cable service in the Borough. Blue Ridge shall not deduct or otherwise credit against the franchise fee any tax, fee or assessment of general applicability. The Borough may amend the franchise fee upon written notice to Blue Ridge, provided that the franchise fee may not exceed the maximum percentage permitted by law. A copy of the resolution or ordinance authorizing the franchise fee rate adjustment by the Borough shall accompany such written notice. Any change in Blue Ridge's franchise fee obligation contained herein shall commence within 60 days from such written notice.
B. 
Quarterly payments. Franchise fee payments to the Borough under this provision shall be computed at the end of each calendar quarter. Such payments shall be made within 45 days following the end of each calendar quarter. Specifically, payments shall be due and payable on or before May 15 (for the first quarter), August 15 (for the second quarter), November 15 (for the third quarter), and February 15 (for the fourth quarter). In the event that any franchise fee payment is not made on or before the date by which it is due, then interest calculated at the then-current prime rate, as published by the Wall Street Journal, shall be added to the amount of franchise fee revenue due to the Borough. The interest rate shall be applied as described from the date such franchise fee payment was originally due. No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any payment be construed as a release of any claim the Borough may have for additional sums payable under this agreement. Upon request and if mutually agreeable, Blue Ridge shall deposit the franchise fee payments electronically into an account as designated by the Borough.
C. 
Quarterly reports. Each franchise fee payment shall be accompanied by a written report containing an accurate statement of Blue Ridge's gross revenues received for cable services for each calendar quarter in connection with the operation of Blue Ridge's cable system and showing the basis for the computation of fees. Specifically, the report shall contain line items for sources of revenue received and the amount of revenue received from each source. The report shall be verified by a financial representative of Blue Ridge.
D. 
Franchise fee review. The Borough shall have the right to conduct a franchise fee review of Blue Ridge's records reasonably related to the sources, amounts and computation of gross revenues. Any such franchise fee review shall occur within 60 months from the date the Borough receives such payment, after which period any such payment shall be considered final. Within 30 days of a written request, Blue Ridge shall provide the Borough with copies of financial records related to the franchise fee review.
(1) 
In the event of an alleged underpayment, the Borough shall provide Blue Ridge with a written statement indicating the basis for the alleged underpayment. If the franchise fee review reveals that there have been no underpayments, the Borough shall provide written notice to Blue Ridge indicating that no underpayments were found and that the franchise fee review is closed. Blue Ridge shall have 30 days from the receipt of the statement regarding an alleged underpayment to provide the Borough with any written objection to the results of the franchise fee review, including any substantiating documentation. Based on this exchange of information, the Borough shall make a final determination of the underpayment(s), if any, within 30 days of Blue Ridge's objection and shall provide Blue Ridge with written notice of the determination. If Blue Ridge disputes the Borough's final determination, it may submit the dispute to mediation or arbitration in accordance with § A204-9G below within 30 days of receiving the Borough's written notice of determination. In the event that Blue Ridge fails to submit the matter to mediation or arbitration within the required time period, the Borough's final determination shall be binding on Blue Ridge.
(2) 
Any franchise fee payment due to the Borough as a result of the franchise fee review shall be paid to the Borough by Blue Ridge within 45 days from the date the Borough notifies Blue Ridge of its final determination, or if the matter is submitted to mediation or litigation, within 45 days from the final disposition of such action. If the franchise fee review shows that franchise fees have been underpaid, then Blue Ridge shall pay the underpaid amount plus monetary fines of 10% of the underpayment. If franchise fees have been underpaid by 5% or more, then Blue Ridge shall also pay up to $6,000 of documented out-of-pocket costs of the franchise fee review.
E. 
Bundled services. If cable services subject to the franchise fee required under this § A204-6 are provided to subscribers in conjunction with noncable services and the total cost of the bundle reflects a discount from the aggregate retail prices of the services contained therein, then the franchise fee shall be applied to the retail price of the cable services in the bundle reduced by no more than a proportionate share of the overall discount.
F. 
Franchise fee revenue allocation. For purposes of franchise fee revenue pertaining to any revenue sources that is allocated among cable, telecommunications, and/or information services, Blue Ridge agrees to determine the allocation of revenue among these services based upon the actual number of subscribers in the Borough that subscribe to each respective service.

§ A204-7 Services to community.

A. 
Services to community facilities. Upon request, Blue Ridge shall, at no charge to the Borough, provide one complimentary standard installation and complimentary services as described hereinbelow to all present and future public facilities, including, but not limited to, the following: the Borough Building, police stations, fire companies, public works buildings, municipal community facilities, water and sewer authorities, all public and private school buildings and public libraries ("permitted locations") and as further set forth on Exhibit A[1] noting the distinction between cable service and Internet service as set forth below. In addition, Blue Ridge shall not terminate any complimentary courtesy cable service being provided to permitted locations as of the effective date of this agreement.
(1) 
Within three months of the effective date and upon request, Blue Ridge shall provide or maintain one standard cable drop, outlet, converter box (and any other required end user equipment) and Basic Plus level services (or equivalent) package to each permitted location. No charge shall be made for standard installation, except that Blue Ridge may charge for underground and/or installation beyond 200 feet from the cable plant or for more than one drop in each permitted location.
(2) 
Within three months of the effective date and upon request, Blue Ridge shall provide or maintain one high-speed Internet access service connection to one permitted location. No charge shall be made for installation or service except that Blue Ridge may charge for installation beyond 200 feet from the cable plant.
(3) 
For the purposes of this section, the term "school" means an educational institution that receives funding pursuant to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq., as amended, and does not include home schools or cyber schools, or any other educational situation that does not meet the specific criteria set forth herein. During the term of this agreement, new public facilities shall be eligible to receive such complimentary service to the extent that they meet the qualifications as set forth hereinabove as permitted free locations.
[1]
Editor's Note: Exhibit A is included as an attachment to this chapter.
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 educational and governmental ("EG") channel in accordance with Section 611 of the Cable Act for exclusive use by the Borough and/or its designee. The EG channel shall be used for programming related to 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 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 Subsection B upon the earlier of the following two events: 1) 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 2) four years from the effective date.
(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, at its sole cost and expense, 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 and 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 Borough with studio equipment (i.e., camera, lights, microphones, office furnishings, etc.) under this EG channel provision.

§ A204-8 Enforcement, insurance and indeminification.

A. 
Violations and opportunity to cure.
(1) 
If the Borough has reason to believe that Blue Ridge violated any provision of this agreement, it shall notify Blue Ridge in writing of the nature of such violation and the section(s) of this agreement that it believes has been violated and the details relating thereto. If the Borough does not notify Blue Ridge of any violation of this agreement, it shall not operate as a waiver of any rights of the Borough hereunder or pursuant to applicable law.
(2) 
Blue Ridge shall have 30 days 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 30 days, 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.
(3) 
If the violation has not been cured within the time allowed under Subsection A(2), and, in the Borough's judgment, Blue Ridge has not taken reasonable steps to cure the violation, then the Borough may deem that Blue Ridge is liable for liquidated damages and/or any other right or remedy and the Borough's costs in accordance with Subsection B.
B. 
Liquidated damages.
(1) 
Because Blue Ridge's failure to comply with provisions of this agreement will 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 amount of $250 per day for each day the violation continues, 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 or legal action by the Borough, but shall be in addition to such specific performance or legal action.
(2) 
The first day for which liquidated 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, including any extension of the cure period granted by the Borough. Liquidated damages may not be assessed for a time period exceeding 120 days per violation. The Borough may commence revocation proceedings and/or initiate an action in law or equity in a court of competent jurisdiction before, during, or after the assessment of liquidated damages.
C. 
Revocation.
(1) 
In addition to the other rights, powers and remedies retained by the Borough under this agreement, the Borough reserves the separate and distinct right to revoke this franchise if:
(a) 
It is demonstrated that Blue Ridge practiced any fraud or deceit upon the Borough in the 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 § A204-3A;
(c) 
Blue Ridge repeatedly violates, after notice and opportunity to cure, one or more of the material terms or conditions of this agreement;
(d) 
There shall be an appointment of a receiver or trustee to take over and conduct the business of Blue Ridge, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:
[1] 
The receivership or trusteeship is vacated within 120 days of appointment; or
[2] 
The receivers or trustees have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this agreement and have remedied all defaults under this agreement. Additionally, the receivers or trustees shall have executed an agreement duly approved by the court having jurisdiction, by which the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of this agreement.
(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 circumstances beyond its control or by reason of force majeure as defined in § A204-9A. Blue Ridge shall not be excused from the performance of any of its obligations under this franchise by mere economic hardship or by the misfeasance or malfeasance of its directors, officers or employees.
(3) 
A revocation shall be declared only by a written decision of the Borough Council after an appropriate public hearing that shall afford Blue Ridge due process and full opportunity to be heard. This shall include the ability to introduce evidence, to question witnesses and to respond to any notice of grounds to terminate in accordance with the standards of a fair hearing applicable to administrative hearings in the Commonwealth of Pennsylvania. All notice requirements shall be met by providing Blue Ridge at least 30 days' prior written notice (via certified mail, return receipt requested) of any public hearing concerning the proposed revocation of this franchise. Such notice shall state the grounds for revocation. The Borough, 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. The Borough shall issue such declaration and finding within 30 days in a written decision which shall be sent via certified or overnight mail to Blue Ridge.
D. 
Performance bond.
(1) 
Blue Ridge shall obtain and maintain, within 30 days of the effective date and throughout the term of this agreement, at its sole cost and expense, a performance bond with a surety company licensed to do business in the Commonwealth of Pennsylvania to ensure Blue Ridge's faithful performance of its obligations. The performance bond shall provide that the Borough may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Borough for Blue Ridge's violations of this agreement, after notice and opportunity to cure, in accordance with Subsections A and B.
(2) 
The performance bond shall be in the amount of $25,000. Blue Ridge shall not reduce, cancel or materially change said bond from the requirement contained herein without the express prior written permission of the Borough.
E. 
Insurance.
(1) 
Blue Ridge shall obtain and maintain, in full force and effect, at its sole cost and expense, during the franchise term, the following minimum insurance coverage with an insurance company that is authorized to conduct business in Pennsylvania and which has an A.M. Best rating (or equivalent) no less than A-minus VII, indemnifying the Borough from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, installation, reconstruction, operation, maintenance or removal of the cable system by Blue Ridge or any of its contractors, subcontractors, agents or employees in the following amounts:
(a) 
The amount of such insurance against liability for damage to property shall be no less than $1,000,000 as to any one occurrence.
(b) 
The amount of such insurance against liability for injury or death to any person shall be no less than $1,000,000.
(c) 
The amount of such insurance for excess liability shall be $3,000,000 in umbrella form.
(d) 
The amount of such insurance against all claims arising out of the operation of motor vehicles and general tort or contract liability shall be $1,000,000.
(2) 
The Borough, its officials and employees, shall be designated as additional insureds under each of the insurance policies required in this Subsection E.
(3) 
Blue Ridge shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Subsection E, and without submitting insurance certificates to the Borough verifying that Blue Ridge has obtained such alternative insurance. Blue Ridge shall provide the Borough with at least 30 days' prior written notice in the event there is an adverse material change in coverage or the policies are canceled or not renewed.
(4) 
Blue Ridge shall deliver to the Borough certificates of insurance showing evidence of the required coverage within 30 days of the effective date of the agreement, upon request by the Borough.
F. 
Indemnification. Blue Ridge shall indemnify, defend, save and hold harmless the Borough, its elected and appointed officials, officers, agents and employees acting in their official capacities, from claims for injury, loss, liability, cost or expense arising in whole or in part from, caused by or connected with any act or omission of Blue Ridge, its officers, agents, contractors, subcontractors or employees, arising out of, but not limited to, the construction, installation, upgrade, reconstruction, operation, maintenance or removal of the cable system or any other equipment or facilities of Blue Ridge. The Borough shall give Blue Ridge timely written notice of its obligation to indemnify and defend the Borough. The obligation to indemnify, defend, save and hold the Borough harmless shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, penalties, and reasonable attorneys' fees. If the Borough determines that it is necessary for it to employ separate counsel, in addition to that provided by Blue Ridge, the cost for such separate counsel shall be the responsibility of the Borough. Blue Ridge shall not indemnify the Borough for any claims resulting solely from acts of willful misconduct or negligence on the part of the Borough.

§ A204-9 Miscellaneous provisions.

A. 
Force majeure. 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.
B. 
Removal of system.
(1) 
Upon lawful termination or revocation of this agreement, Blue Ridge shall remove its supporting structures, poles, transmissions 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 lawful termination or revocation, 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.
(2) 
During the term of the agreement, if Blue Ridge decides to abandon or no longer use all or part of its cable system, it shall give the Borough written notice of its intent at least 90 days prior to the announcement of such decision, which notice shall describe the property and its location. The Borough shall have the right to either require Blue Ridge to remove the property, remove the property itself and charge Blue Ridge with the costs related thereto, or transfer ownership of the property to the Borough's designee, provided fair market value is paid to Blue Ridge.
(3) 
Notwithstanding the above, Blue Ridge shall not be required to remove its cable system, or to relocate the cable system, or to sell the cable system, or any portion thereof, as a result of revocation, denial of renewal, or any other lawful action to forbid or disallow Blue Ridge from providing cable services, if the cable system is actively being used to facilitate any other services not governed by the Cable Act.
C. 
Notices.
(1) 
Every notice or payment to be served upon or made to the Borough shall be sent to:
Borough Manager
Borough of Denver
501 Main Street
Denver, PA 17517
(2) 
The Borough may specify any change of address in writing to Blue Ridge. Every notice to be served upon Blue Ridge shall be sent to:
Blue Ridge Communications
613 Third Street, P.O. Box 215
Palmerton, PA 18071
David L. Masenheimer, President
(3) 
Blue Ridge may specify any changes of address in writing to the Borough. Each delivery to Blue Ridge or the Borough shall be equivalent to direct personal notice, direction or order, and shall be deemed to have been given at the time of receipt.
D. 
Equal employment opportunity. Blue Ridge is an equal opportunity employer and shall comply with all applicable federal and state laws and regulations regarding equal opportunity employment.
E. 
Captions. The captions for sections throughout this agreement are intended solely to facilitate reading and reference to the sections and provisions of this agreement. Such captions shall not affect the meaning or interpretation of this agreement.
F. 
Governing law; venue. This agreement shall be governed and construed by and in accordance with the laws of the Commonwealth of Pennsylvania. If suit is brought by a party to this agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of Pennsylvania, County of Lancaster, or in the United States District Court for the Eastern District of Pennsylvania.
G. 
Dispute resolution.
(1) 
Arbitration.
(a) 
Any dispute between the parties hereto, including, but not limited to, disputes or controversies arising from or related to interpretation of this agreement, may be arbitrated, provided that both parties consent in writing to the arbitration. Such arbitration shall be final and binding, and the parties shall have no right to appeal from the arbitrator's decision.
(b) 
The Borough may initiate arbitration by resolution of its Borough Council, while Blue Ridge may initiate arbitration by sending written notice to the Borough.
(c) 
After arbitration has been initiated, the Borough and Blue Ridge may agree that one arbitrator may conduct the arbitration and may mutually select such arbitrator.
(d) 
If either the Borough or Blue Ridge does not consent to having one arbitrator conduct the arbitration, or if the parties cannot agree upon the identity of such arbitrator, the arbitration shall be conducted by three arbitrators, who shall be selected as follows:
[1] 
If the Borough initiates arbitration, the Borough shall select one arbitrator, and Blue Ridge, by written notice, shall select one arbitrator within 15 days after receiving notice of the Borough's selected arbitrator. If Blue Ridge initiates arbitration, it shall select one arbitrator, and the Borough shall select one arbitrator within 15 days after receiving notice of the Blue Ridge's selected arbitrator.
[2] 
The two selected arbitrators shall select a third arbitrator within 15 days after the appointment of the second arbitrator. If the two arbitrators are unable to agree upon a third arbitrator within the time limit, the third arbitrator shall be appointed by the presiding Civil Judge of the Lancaster County Court of Common Pleas.
(e) 
After selection of the arbitrator(s), the arbitrator(s) shall take an oath to serve neutrally and impartially. The arbitrator(s) shall then schedule a date, time and place for the arbitration hearing. The hearing shall occur not less than 120 days after the appointment of the arbitrator (or the third arbitrator, if three arbitrators are used), unless extended by mutual agreement of the Borough and Blue Ridge. The arbitrator(s) shall make a written report to the Borough and Blue Ridge on the final determination within 30 days after completion of the hearing. If the arbitration is conducted by three arbitrators, the determination of a majority of the arbitrators shall constitute a final, binding arbitration determination. The arbitration shall be conducted according to the Uniform Arbitration Act.[1]
[1]
Editor's Note: See 42 Pa.C.S.A. § 7301 et seq.
(f) 
The Borough and Blue Ridge shall share equally and separately the fees and costs of the arbitrator(s).
(2) 
Mediation. The Borough and Blue Ridge agree that, should any dispute arise between the parties concerning any aspect of this agreement which is not resolved by mutual agreement of the parties, the dispute may be submitted to mediated negotiation prior to any party commencing arbitration or litigation, provided that both parties consent in writing to the mediation. In such event, the Borough and Blue Ridge may agree to participate in good faith in a nonbinding mediation process. The mediator shall be selected by mutual agreement of the parties. In the absence of such mutual agreement, each party shall select a temporary mediator, and those mediators shall jointly select a permanent mediator. If the Borough and Blue Ridge are unable to successfully conclude the mediation within 60 days from the date of the selection of the mediator, either party may terminate further mediation by sending written notice to the other party. After written termination notice has been received by the other party, either party may request arbitration, as set forth in Subsection G(1), or may pursue any other available legal remedies. All costs associated with mediation shall be borne, equally and separately, by the parties.
H. 
Transfer, assignment or change in control.
(1) 
Neither Blue Ridge nor its parent nor any affiliated entity shall transfer or assign or otherwise encumber, through its own action or by operation of law, its right, title or interest in the cable system or in this agreement without the prior written consent of the Borough, provided that such consent shall not be unreasonably withheld.
(2) 
Neither Blue Ridge nor its parent nor any affiliated entity shall change, transfer or assign, through its own action or by operation of law, its control of the cable system or of this agreement without the prior written consent of the Borough, provided that such consent shall not be unreasonably withheld.
(3) 
Neither Blue Ridge nor its parent nor any affiliated entity shall sell, convey, transfer, exchange or release more than 50% of its equitable ownership in the cable system without the prior written consent of the Borough, provided that such consent shall not be unreasonably withheld.
(4) 
No such consent shall be required for i) a transfer in trust, by mortgage, hypothecation, or by assignment, to a financial institution of any rights, title or interest of Blue Ridge in the franchise or in the cable system in order to secure indebtedness; or ii) a transfer to an entity owned and/or controlled by Blue Ridge.
(5) 
Blue Ridge shall make written application to the Borough of any transfer, change in control or assignment as described above and shall provide all information required by FCC Form 394 and any other applicable federal, state, and local statutes and regulations regarding transfer or assignment. The Borough shall have 30 days from the receipt of FCC Form 394 to notify Blue Ridge of any additional information it needs to make an informed decision on the transfer or assignment. The Borough shall have 120 days from the receipt of all required information to take action on the transfer or assignment.
(6) 
Any consent by the Borough for any transfer or assignment 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.
I. 
Entire agreement. This written instrument contains the entire agreement between the parties, supersedes all prior agreements or proposals, whether written or oral, except as specifically incorporated herein, and cannot be changed without written amendment approved by both the Borough and Blue Ridge. This agreement supersedes all prior cable franchise agreements or cable ordinances, or parts of cable franchise agreements or cable ordinances, that are in conflict with the provisions herein.
J. 
Severability. If any section, provision or clause of this agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, or is pre-empted by federal or state laws or regulations, such section, provision or clause shall be deemed to be severable from the remaining portions of this agreement and shall not affect the legality, validity or enforceability of the remaining portions of this agreement.
K. 
No waiver of rights. No course of dealing between the Borough and Blue Ridge, nor any delay on the part of the Borough in exercising any rights hereunder, shall operate as a waiver of any such rights of the Borough or acquiescence in the actions of Blue Ridge in contravention of such rights, except to the extent expressly waived by the Borough.
L. 
Change of law. In the event there is a change in a federal or state statute or regulation applicable to the cable system or to this agreement, the Borough or Blue Ridge may notify the other party of its desire to amend this agreement in order to comply with the change in statute or regulation. The Borough and Blue Ridge may amend this agreement to comply with such change in statute or regulation, provided such amendment is approved by the Borough and Blue Ridge.
M. 
Compliance with laws. Blue Ridge shall comply with all federal, state and local laws and regulations.
N. 
Third-party beneficiaries. Nothing in this agreement is or was intended to confer third-party beneficiary status on any person other than the parties to this agreement to enforce the terms of this agreement.
O. 
Applicability of agreement. All of the provisions in this agreement shall bind Blue Ridge, the Borough and their respective successors and assigns. This agreement is authorized by Ordinance No. 637, dated January 9, 2017, of the Borough Council.