[HISTORY: Adopted by the Borough Council of the Borough of Eagles Mere 7-6-1988 by Ord. No. 89. Amendments noted where applicable.]
A. 
The purpose of this chapter is to provide a legal framework through which the cable operator and the municipality establish procedures to ensure the highest level of service to the community.
B. 
This franchising ordinance shall be referred to as the "Eagles Mere Borough Cable Television Franchise."
A. 
When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number.
B. 
For the purpose of this chapter, the following terms, phrases, words, abbreviations and the derivations shall have the meaning herein given:
BOROUGH
The municipality of Eagles Mere.
CATV
A cable television system as hereinafter defined.
(1) 
CABLE TELEVISION SYSTEMA a system composed of antennas, cables, wires, lines, towers, wave guides and/or any other conductors, converters, equipment or facilities designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable audio and/or visual radio, television, electronics or electrical signals to and from persons, subscribers and locations in the franchise area and operating within the guidelines of the Federal Communications Commission.
(2) 
BASIC CATV SERVICEThe distribution of broadcast television signals by the franchised cable company.
COMPANY
The grantee of rights under this chapter.
COUNCIL
The governing body of the municipality.
FRANCHISE AREA
That area within the corporate limits of the municipality.
PERSON
Any individual, firm, partnership, association, corporation, company or organization.
PROPERTY OF COMPANY
All property owned, installed or used by the company in the conduct of a CATV business in the municipality.
RESIDENT
All citizens who reside in the municipality and are eligible to subscribe with the company for CATV service.
STREET
The surface of and space above and below any public street, right-of-way, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, communications or utility easement, now or hereafter existing as such within the franchise area.
SUBSCRIBER
Any person or resident who has contracted to receive basic CATV service.
A. 
Whereas the municipality has approved the qualifications of the company and the adequacy and feasibility of the company's construction arrangements as part of a full public proceeding affording due process, there is hereby granted by the municipality to the company the right and privilege to engage in the business of operating and providing a CATV system in the municipality, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain the system in, on, over, under, across and along any public street. Such permission is subject to all ordinances, rules and regulations now in force or which may hereafter be passed relative to the use of the streets or to the front or back yard area above or underground installations in the municipality. The municipality may terminate the privileges granted herein for attaching to any specific poles when, in its judgment, such action is necessary for reasons beyond its control, by giving to the franchisee 90 days' notice, in writing, of such termination.
B. 
The right to operate and provide a CATV system in the municipality and to use and occupy said streets for the purpose herein set forth shall not be exclusive, and the municipality reserves the right to grant a similar use to any other person.
This franchise and any attachments made, poles erected and any underground facilities laid in accordance with provisions of this chapter may remain for a period of 10 years from the first day of 1988 to the last day of 1998, with a 5 year option to renew by the company.
A. 
All transmission and distribution structures, lines and equipment erected by the Company within the franchise area shall be so located as to cause minimum interference with the use of streets and to cause minimum interference with the rights and reasonable convenience of property owners who abut any of said streets, and the company shall install and maintain its wires, cables, fixtures and other equipment in such a manner that it will not interfere with any installation of the municipality or of any public utility serving the municipality. The CATV system shall be constructed and operated in compliance with all municipal, state and national construction and electrical codes and the facilities shall be modified as necessary to comply with the code changes. The CATV system shall, at its own expense, remove, alter, rearrange, improve or repair such attachments and cables.
B. 
All poles or other fixtures erected in any street by the company shall be placed in such a manner as to not interfere with the usual use of such street. The erection of such poles or fixtures shall require written permission to do so from the Borough Council.
C. 
The company shall, on request of any person holding a building moving permit issued by the municipality, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the company shall be given not less than 48 hours advance notice to arrange for such temporary wire changes.
D. 
The company shall be entitled to trim trees upon any overhanging streets and public ways and places of the franchise area so as to provide the branches of such trees from coming in contact with the wires and cables of the company, except that at the option of the municipality, such trimming shall be subject to prior approval of the work by Council and may be done by it or under its supervision and direction at the expense of Company.
E. 
The municipality shall have the right to make additional use, for any public or municipal purpose, of any poles or conduits controlled or maintained exclusively by or for the company in any street, provided that such use by the municipality does not interfere with the use by the company. The municipality shall indemnify and hold harmless the company against and from any and all claims, demands, causes of actions, suits, actions, proceedings, damages, costs or liabilities of every kind and nature whatsoever arising out of such use of the company's poles and conduits.
F. 
Any additional rights-of-way required by the company shall be secured by the company at it's own expense.
A. 
The company shall, at all times, employ ordinary care and shall install and maintain in use commonly-accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
B. 
All structures and all lines, equipment and connections in, over, under and upon the streets in the franchise area shall, at all times, be kept and maintained in a safe, suitable condition and in good order and repair by the company.
A. 
The company shall install the system within the franchise area to the extent that the system is or may become necessary and is or may become economically feasible.
B. 
The company, whenever it shall receive requests for service from any subscriber, shall extend it's system to such subscriber in conformity with published rates and charges. The line extension or service extension costs shall be set forth in conformity with the provision of § 48-13 hereinafter set forth.
C. 
In the event that any complaint shall arise because of the lack of service or line extension to any part or parts of the Borough, the aggrieved party or parties shall submit its complaint, in writing, to the Borough Secretary and the question of service or line extension shall be resolved in conformity with the provision of § 48-19 hereinafter set forth.
D. 
In the event that additional adjacent territory is incorporated within the borough limits, by annexation or otherwise, the company's rights and duties under this chapter shall be deemed to include such additional territory.
The company shall furnish to the municipality access to maps showing the network of attachments and location of cable installed within the municipality together with the location of any and all poles set hereunder.
The company will inform the borough, in writing, of any major changes proposed in the system at least 60 days before the changes are made and shall exercise good faith to always keep the borough informed on any and all changes which may affect cable subscribers. The company will receive any and all comments made by the borough, and these comments will be considered before any decisions are made regarding changes. If a decision is made which is contrary to the borough's recommendation, the company will enact the change for a sixty-day trial period. At the end of the sixty-day period or at any designated time, the borough or the company wishes to reopen discussions, both parties will meet to discuss the action taken, and the company shall again reconsider its actions and receive any and all comments made by the borough.
The company will submit, in writing, a list specifying each channel location on the dial and its use. The franchisee will also advise the municipality of any proposed changes of channels and their use at least 30 days before such changes take place, except temporary channel changes made for reasons such as signal source origination or transmission problems or equipment failure.
The company shall operate and maintain its cable television system in full compliance with the standards set forth by the Federal Communications Commission.
The company agrees that continuity of service and complaint response are an important part of its activities and agrees to maintain a local business office or agent to which subscribers may telephone complaints between the hours of 8:00 a.m. and 5:00 p.m. daily without incurring added message or toll charges. Such complaints regarding cable television operations shall be logged and shall promptly be reported to the company and serviced. The company agrees to respond to all such subscriber complaints within 12 hours of such notification and, if possible, to correct the problem within 24 hours. A telephone answering service will be provided during evenings and weekends for the twenty-four-hour system emergency monitoring. If a subscriber has a complaint regarding cable television operation which is not resolved within 24 hours of notification, the subscriber shall be entitled to file a written or oral complaint with the Borough Secretary, who shall have the responsibility to administer the franchise and establish procedures for resolving complaints which shall include the authority and right to meet with a representative of the company within 15 days to fully discuss and resolve such matters. If a complaint regarding service is not resolved within 48 hours of the notification, the Borough Secretary and by request of subscriber, may require the company to refund 100% of the amount proportioned to the service lost, only in the event that it exceeds $5.00. The company shall notify each subscriber, at the time of initial subscription to service of the company, of the procedures for reporting and resolving such complaints. The lost services apply only to those controlled by the cable company.
The company shall maintain on file with the Borough Secretary a schedule setting forth all rates and charges to be made to subscribers for basic CATV service, including connection, line extension and service charges. Notice of proposed changes in rates and charges shall be filed with the Borough Secretary at least 60 days in advance of the effective date. Proposals for changes in rates and charges for basic CATV services shall not be made by the company more often than once in each two-year period.
The company shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person nor subject any person to prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedule to which any customer coming within such classification would be entitled, and provided, further, that connection and service charges may be waived or modified during promotional campaigns of the company.
It is agreed and understood by both the company and Council that increased public access and use of the CATV facilities is desirable and necessary, and that joint efforts to develop proposals, programs and capabilities are an inherent goal in all future relationships and activities affecting basic service. To provide local input and advise Council and the company on citizen needs and long-range plans, Council may create a special Eagles Mere Advisory Cable Television Board and develop a charge which will define it's duties and responsibilities. In the development of the charge to the Board, the company shall be entitled to review and comment on the scope of responsibilities proposed and to submit it's suggestions to Council prior to it's adoption by that body. To work with the Cable Television Advisory Board, if one is created, the company agrees to designate a company representative who shall act as the official contract and liaison officer.
The company shall pay to the borough, on or before February 1 of each year, a franchise fee as agreed upon by the the company and the borough and outlined in the Cable Franchise Agreement.[1]
[1]
Editor's Note: The Agreement will be on file in the borough offices.
The company shall at all times protect and hold harmless the borough from all claims, actions, suits, liability, loss, expense or damage of every kind and description, including investigation costs, court costs and attorney fees which may accrue to or be suffered or claimed by any person or persons arising out of all actions of the company in the ownership, constructions repair, replacement, maintenance and operation of said cable television system and by reason of any license, copyright, property right or patent of any article or system used in the construction or use of said system. The borough shall give the company prompt notice of any such claim, actions and suits, without limitation, in writing. The company shall maintain, in full force and effect during the life of any franchise, public liability insurance in a solvent insurance company authorized to do business in the Commonwealth of Pennsylvania, at no less than in the following amounts: $50,000 property damage in any one accident; $100,000 for personal injury to any one person; $300,000 for personal injury in any one accident. Provided that all such insurance may contain reasonable deductible provisions not to exceed $1,000 for any type of coverage, and provided, further, that the borough may require that any and all investigation or claims made by any person, firm or corporation against the borough arising out of any use or misuse of privileges granted to the company hereunder shall be made by, or at the expense of the company or it's insurer.
If a dispute should arise between the company and the borough during the term of this franchise, the following procedures shall be followed to achieve binding resolution:
A. 
The facts in the dispute shall be prepared in written form by the company and the borough and copies shall be made available to each.
B. 
Council and the Company shall each appoint three persons to a committee to study the dispute positions and to attempt to work out agreement of them. The committee's recommendation shall be in writing and given to both the company and the borough.
C. 
If the company or the borough do not agree with the recommendations of the committee as to the interpretation of this franchise, only then will matters be submitted for arbitration.
D. 
The arbitration panel shall consist of three members: one appointed by the company; one appointed by the borough; and one appointed by mutual agreement by the company and the borough arbitrators.
E. 
The arbitration panel shall meet within 15 days of its appointment and shall complete its action and submit a written report and settlement within 45 days of its initial meeting.
F. 
In its deliberations, the arbitration panel may require the presentation of information from the company and the borough and may seek outside information if it deems necessary to do so.
G. 
The cost of the arbitration panel's work, including salaries and expenses, shall be borne equally by the company and the borough.
Upon expiration of the franchise, if the company shall not have acquired an extension or renewal thereof and accepted same, it may have and it is hereby granted the right to enter upon the streets and public ways of the borough for the purpose of removing therefrom any or all of it's property. In so removing said property, the company shall refill, at it's own expense, any excavation that shall be made by it and shall leave said streets and public ways and places in as good condition as that prevailing prior to the company's removal of it's property. The determination of "in as good condition" shall be made by the Borough Council and the company shall be entitled to appeal to Council in any case or cases it believes the Borough Council has erred.
The company shall not sell or transfer it's plant or system to another person other than to a parent company or a wholly owned subsidiary of the company, nor transfer any rights under this franchise to another person without prior approval of Borough Council. Provided that no sale or transfer shall be effective until the vendee, assignee or lessee has filed in the office of the Borough Secretary an instrument duly executed reciting the fact of such sale, assignment or lease, accepting the terms of the franchise and agreeing to perform all the conditions thereof. Such Council approval will not be unreasonably withheld and neither this section nor other sections of this franchise shall preclude the mortgaging, hypothecating or the assignment of certain rights in the system or the pledge of stock by the company for the purpose of financing.
At any time during the term of this contract either party can request a meeting to discuss any provision of this contract or any matter pertaining to the operation of cable television within the borough, and this request must be honored by the other party. By mutual agreement, the borough or cable operator may amend the conditions of the franchise upon ninety-day written notification. Amendments may involve, but are not limited to:
A. 
Public access capability.
B. 
Number of channels the system must carry.
C. 
Number of channels to be set aside for specified purpose.
D. 
Performance standards.
E. 
Types of services to be provided by franchisee.
F. 
Other terms and conditions.
G. 
Establish need/demand estimators that would dictate growth in public access channels.
A. 
When not otherwise prescribed herein, all matters therein required to be filed with the borough shall be filed with the Borough Secretary.
B. 
The company shall assume the cost of publication of this franchise chapter as such publication is required by law. A bill for publication costs shall be presented to the company by the Secretary upon the company's filing of acceptance and shall be paid at that time.
C. 
In the case of any emergency or disaster, the company shall, upon request of the borough, make available it's facilities to the borough for emergency use during the emergency or disaster period.
The company shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power of the borough. The borough reserves the right to adopt from time to time, in addition to the provisions herein contained, such ordinances as may be deemed necessary to the exercise of police power. Such regulation shall be reasonable and not restrictive to the rights herein granted and not in conflict with the laws of the commonwealth or other local laws or regulations.
A. 
From and after the effective date of this chapter, it shall be unlawful for any person to construct, install or maintain within any public street in the borough, or within any other public property of the borough or within any privately-owned area within the borough which has not yet become a public street (but is designated or delineated as a proposed public street on any tentative subdivision map approved by the borough) any equipment or facilities for distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of such street or property or area has first been obtained and unless such franchise is in full force and effect. It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, within any part of the franchised CATV system within the Borough for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without repayment to the operator of said system.
B. 
It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.
C. 
Any person violating or failing to comply with any of the provisions of this section of this chapter shall be shall be punishable by a fine not exceeding $600, plus costs of prosecution for each offense, and in default of payment of such fine and costs to imprisonment in the county jail for a term not exceeding 30 days.