[HISTORY: Adopted by the Board of Supervisors
of the Township of East Caln 10-20-1993 by Ord. No. 1993-7. Amendments noted where
applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 180.
This chapter shall be known as the "East Caln
Township Community Antenna Television Ordinance."
When used in this chapter, unless the context
otherwise requires, the following terms and their derivatives shall
have the meaning herein given (and when inconsistent with the context,
words in the present tense include the future, words in the plural
number include the singular and words in the singular include the
plural).
An entity which owns or controls, is owned or controlled
by or is under common ownership with grantee.
A mutually agreed to calendar date which will serve as that
date on which future basic rates may be adjusted according to an annual
cycle.
The tier of service regularly provided to all subscribers
that includes the retransmission of all must carry broadcast television
signals as defined in rules established by the Federal Communications
Commission (FCC) or any other applicable government regulations in
the absence of at least three must carry signals, any unaltered broadcast
television signals and the public education and government channels,
as required by the franchising authority or other applicable government
authority pursuant to Title VI of the Cable Communications Policy
Act or other applicable governmental act.
All remuneration received directly by the grantee from subscribers
in payment for regularly furnished basic cable television service,
but shall not include any taxes on services furnished by the grantee
imposed on any subscriber or user by any government, governmental
unit, political subdivision, agency instrumentality and collected
by the grantee.
The Board of Supervisors of East Caln Township.
That body of Federal law which was enacted on October 30,
1984 and having an effective date of December 29, 1984, as amended.
A system of antennas, cables, wires, lines, towers, wave
guides or other conductors, converter, equipment or facilities, designed
and constructed for the purpose of producing, receiving, transmitting,
amplifying and distributing audio, video and other forms of electronic
or electric signals, located in the Township.
The initial authorization or renewal thereof issued by the
Township, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate or otherwise, which
authorizes construction and operation of the cable television system
for the purpose of offering cable service.
That area within the municipal limits of the Township as
now or hereafter constituted.
The grantee (franchise holder) of rights granted by the Township
under this chapter. A franchisee.
The monthly cable service revenues actually received by the
grantee from subscribers of the cable system. Included are revenues
actually received in payment for basic cable services and additional
services such as, but not limited to, HBO, Cinemax, Showtime, Disney
and similar programming. Such phrase shall not include any taxes on
cable service which are imposed directly or indirectly on any subscriber
thereof by any governmental unit or agency and which are collected
by the grantee on behalf of such governmental unit or agency.
Gross subscriber revenues received from so-called premium
channels such as, but not limited to, HBO, Cinemax, Showtime, Disney
and similar programming less the amount which the franchise actually
pays to the provider of said services.
The surface of and space above and below and within the right-of-way
of any public street, highway, freeway, bridge, land path, alley,
court, boulevard, sidewalk, pathway, way, lane, public way, drive,
circle or other public right-of-way including, but not limited to,
public utility easements, dedicated utility strips or right-of-way
and any temporary or permanent fixtures or improvements located thereon,
now or hereafter held, owned or dedicated to the Township.
A category of cable service provided by grantee and for which
a separate charge is made by grantee.
The latest in cable television technology which may be practically
applied within the Township.
A person or user of the cable system who lawfully receives
cable service or other services therefrom with grantee's expressed
permission.
The Township of East Caln, Chester County, Pennsylvania,
also called the "franchising authority."
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
Upon application duly made, the Township may
grant to a designated grantee by a duly executed franchise agreement
the right and privilege to engage in the business of operating and
providing a cable television system within the Township, and for that
purpose subject to the review and prior approval of the Township Engineer
when deemed necessary by the Board to erect, install, construct, repair,
replace, maintain and retain in, on, over, under, upon, across and
along any public way, and all extensions thereof and additions thereto
in the franchise area, such as poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, pedestals, amplifiers and other necessary
Township owned or leased property. Any such grant shall be solely
for the purpose of transmission and distribution of audio, digital
and video impulses and television energy in accordance with the laws
and regulations of the United States of America, of the Commonwealth
of Pennsylvania and of this Township. The Township may promulgate
a form for the making of any such application, and in the event such
form is promulgated, then application shall be only on such form.
Any right granted pursuant to this chapter shall be conditioned on
the faithful performance and observance of the conditions, regulations
and reservations herein specified and shall further be conditioned
upon the prompt payment of the amounts provided for herein.
The right of any grantee to the use and occupancy
of the public way shall be exclusive in the grantee. The Township
shall require a franchise agreement of the grantee and of any other
individual or company engaging in the cable television business within
any portion of the Township. Further, any grantee shall have the right
in accordance with any applicable laws, rules or regulations to adjust
current rates according to the evaluation of those rates effected
by any other grantee operating a cable television franchise in the
Township. Such adjustments shall be accomplished through notification
filed with the Township Secretary and shall occur automatically on
the date established by the grantee.
A.
Rights granted to any grantee hereunder shall take
effect and be in full force from and after the date upon which each
application is approved by the Township and a franchise agreement
is executed by the grantee and the Township. The rights granted hereunder
shall continue in full force and effect for an initial period of not
less than 10 years after the date of application approval and the
execution of a franchise agreement, and each grantee whose application
is approved, provided such grantee is not in default, shall have the
right to renew the rights granted hereunder for an additional period
of five years and, thereafter, in additional five years increments,
from and after the expiration date of any initial renewal period provided
the grantee is not in default. The right to renew for each additional
period shall be exercised by the grantee by giving written notice
to the Township of grantee's election to exercise its renewal option,
which notice shall be given not less than six months nor not more
than one year prior to the expiration of the initial term granted
hereunder. Such notice shall be either personally served or mailed,
certified or registered mail, return receipt requested, to the Township
at its administrative offices.
B.
Prior to the issuance or renewal of any franchise
to operate a cable television system within the Township, the Board
shall conduct a public hearing, to which the grantee or proposed grantee
shall be a necessary part, subject to 10 days prior public notice
advertised one time in a newspaper of general circulation in the Township.
The following factors shall be considered in the issuance or renewal
of the franchise and the grantee or proposed grantee shall have the
burden to demonstrate compliance with each criteria:
(1)
Whether the grantee has or can substantially comply
with the material terms of the proposed franchise agreement, this
chapter and all other applicable law.
(2)
Whether the quality of the grantee's service has or
will be reasonable in light of the community needs.
(3)
Whether the grantee has the financial, legal and technical
ability to provide the services, facilities and equipment proposed.
(4)
Whether the grantee's proposal is reasonable to meet
current and future cable-related community needs and interest, including
the cost of meeting them.
C.
Any proceeding undertaken by the Township that relates
to issuance or renewal of any franchise shall be governed by and comply
with the provisions of § 626 of the Cable Communications
Policy Act of 1984, unless the procedures and substantive protection
set forth therein shall be deemed to be preempted or amended by the
provisions of any subsequent provisions of Federal or Commonwealth
law, which shall then apply to such proceeding.
D.
In addition to the procedures set forth in § 626(a), after written request by the grantee, the Township shall notify the existing or proposed grantee of its preliminary assessments regarding the identify of future cable-related community needs and interest as well as the past performance of grantee under the then current franchise agreement, if any. Such request shall be made prior to the time that the four month period referred to in Subsection (c) of § 626 is considered to begin. Not withstanding anything contrary herein, at any time during the term of any current franchise agreement under which the grantee is operating, subject to affording the public appearance notice and opportunity to comment, the Township in its sole discretion may agree to undertake and finalize negotiations with grantee regarding of the then current franchise agreement and the Township may grant a renewal thereof, in its sole discretion.
E.
In addition to the foregoing considerations, renewal
of the grantee's franchise shall be subject to the Township and grantee
agreeing upon a satisfactory fee schedule for the renewal period.
A.
To the extent possible, all franchise facilities shall
be attached to existing poles. To the extent that existing poles are
insufficient for the operation of a franchise or if the grantee is
unable to negotiate agreements reasonably satisfactory to the grantee
providing for use of existing poles, at grantee's sole cost and expense
as necessary for the construction and maintenance of its television
distribution system, subject to prior written approval of the location
of such poles by the Township Manager. Approval shall not be granted
for the installation of such poles, when in the Township Manager's
or Board opinion installation of such new transmission facilities
underground is feasible, otherwise necessary or desirable to conform
to the surrounding community.
B.
Grantee shall have the right, authority, power and
privilege to attach any of its system facilities to any existing or
future poles, towers or other electrical facilities owned by the Township
in a manner which will not interfere with the use of such poles, towers
and other electrical facilities by the Township provided that no such
attachment shall take place unless 30 days prior written notice requesting
such attachment has been given by the grantee and received by the
Township and the Township Manager has previously approved such request.
C.
Grantee shall pay to the Township an annual fee for
each pole utilized by grantee owned by the Township, which fee shall
not be less than $2 per pole. If the grantee shall negotiate a contract
with the Philadelphia Electric Co. or Bell Telephone Company of Pennsylvania,
or any other public utility for use of their poles for a fee per pole
year, then the annual fee payable hereunder shall be the same as the
fee payable pursuant to such negotiated contracts, but no less than
the amount aforesaid. If such utility fees are different, the annual
fee per pole payable to the Township shall be the higher of the negotiated
contract fees but not less than the aforesaid minimum fee.
D.
All holders of public licenses and franchises within
the municipal limits of the Township shall, to the extent permitted
by law, cooperate with every grantee hereunder to allow usage of existing
poles and pole line facilities wherever possible and wherever such
usage does not interfere with the normal operation of said pole and
pole line so that the number of new or additional poles constructed
in the Township shall be minimized.
E.
Each grantee shall extend to the Township free of
any expense, joint use of any and all poles owned by the grantee for
any proper Township purpose insofar as may be accomplished without
interference with the use and enjoyment of the grantee's own wires
and fixtures. Township shall hold each grantee harmless for any and
all action, causes of action or damage caused by any action of the
Township in placing wires or appurtenances upon the poles of the grantee.
A.
All transmission and distribution structures, poles,
lines and equipment installed or erected by the grantee within the
franchise area shall be so located as to cause minimum interference
with the proper use of streets and with the rights and reasonable
convenience of property owners who adjoin any of said streets and
shall be subject to prior written approval of the Township Manager
who shall determine pole setback from any cartway or underground location,
as applicable and all other matters related to such location and installation.
The cable television system shall be constructed and operated in compliance
with all applicable government zoning, construction and electrical
codes.
B.
In case of disturbance of any street or paved area,
the grantee shall obtain a Township road occupancy permit and, at
its sole expense and in a manner required by the Township, replace
and restore such street and paved area in as good condition as existed
immediately prior to such disturbance.
C.
The grantee shall, at it sole expense, protect, support,
temporarily disconnect, remove from or relocate in the same public
way or public place, any property of the grantee when lawfully required
by the Township by reason of traffic conditions, public safety, street
grade, installation of sewers, drains, gas or water pipes, or any
other type of structures or improvements by or required by the Township,
but grantee shall, in all cases, have the right of abandonment of
its property, subject to the Township ordinance unless such property
shall unreasonably interfere with or shall detract from such public
ways or public places as determined by the Township in its sole discretion.
D.
Should the Township seek to alter, improve, redevelop
or refurbish any street(s) or area presently served by existing cable
television system, the Township shall notify the grantee of such plans.
This notice shall be issued concurrent with the notification of public
utility companies and grantee shall be invited to all preconstruction
conferences.
E.
Whenever it shall be necessary for any grantee to
raise, lower or temporarily remove its lines or facilities to permit
the moving of any machinery or equipment or any building or structure,
the grantee shall accomplish the same upon the request of any person
lawfully entitled to move same. The actual expense thereof shall be
paid by the person requesting the same and grantee shall have the
right to require payment in advance of the reasonably estimated cost
to be incurred; provided, however, that if any such raising, lowering
or temporary removal shall be necessary for Township purposes and
shall be done at the request of the Township, then it shall be accomplished
by the grantee at no charge to the Township. The grantee shall be
given not less than 10 business days advance notice to arrange for
such temporary wire change.
F.
To the extent that the Township shall have the authority
to grant the same, and after approval of the property owner, subject
to prior written approval of the Township, the grantee shall have
the authority, at its expense, to trim trees overhanging on the street
in the franchise area so as to prevent branches from coming in contact
with the grantee's wires and cables, except that at the option of
the Township, such trimming may be done by it or under its supervision
and direction at the grantee's expense.
G.
Subject to any Commonwealth or Federal regulations
or tariffs, the Township shall have the right at no expense to the
Township to make additional use, for any public purpose, of any poles
or conduits controlled or maintained exclusively by or for the grantee
in any street provided:
(1)
Such use by the Township does not reasonably interfere
with the use by grantee.
(2)
The Township holds the grantee harmless against and
from all claims, demands, causes of action, suits, actions, proceedings,
damages, cost or liabilities of every kind and nature whatsoever arising
exclusively out of Township use of said poles or conduits.
(3)
This hold harmless provision shall include, but not
limited to, reasonable attorney's fees and costs.
A.
Each grantee whose application is approved pursuant
to this chapter, shall construct an all band system capable of providing
at least 30 channels of television reception and FM radio to the grantee's
subscribers and installation and maintenance of equipment shall be
such that standard color signals shall be transmitted to the subscribers.
B.
Each grantee shall furnish upon request, free of charge,
at least one service distribution connection to each school, fire
station, police station, Township administration building and public
library located within the Township and along any of the grantee's
transmission line routes, within the normal distribution area and
shall make available for public use in any of those facilities no
fewer than one channel per 35 channels otherwise offered and two channels
for 52 channels or more offered.
C.
In the case of an emergency or disaster, the grantee
shall, upon the Township's request, make available at least one cable
television channel to the Township for emergency use during the emergency
or disaster period.
A.
The grantee shall at all times employ a high degree
of care and shall install and maintain in use constant with the state-of-the-art
methods and devices for preventing failures and accidents which are
likely to cause damage, injuries or nuisances to the public. All such
work shall be performed in compliance with applicable FCC or other
Federal, Commonwealth and Township regulations.
B.
Grantee shall keep all structures and all lines, equipment
and connections in, over, under and upon all public ways within the
franchise area in a safe and first class condition and in good order
and repair.
A.
The grantee is hereby authorized to extend the system
within the franchise area to the extent that such extension is or
may become technically and economically feasible.
B.
Provided, whenever the grantee shall have received
written requests for service from at least seven subscribers within
400 cable meters (1,300 cable feet) of its aerial trunk cable, or
at least nine subscribers within 400 cable meters (1,300 cable feet)
of its underground trunk cable, it shall extend its system to such
subscribers solely for the usual connection and service fees for all
subscribers. The 400 meters shall be measured in extension length
of grantee's cable required for service located within the public
way or easement and shall not include length of necessary drop cable
to subscriber's home or premises.
C.
No person in the grantee's franchise area shall be
arbitrarily refused service; but in recognition of the capital cost
involved in unusual circumstances, including without limitation, instances
when the distance from distribution cable to connection of service
to subscriber when population density is less than the density as
specified hereinabove, service may be made available on the basis
of costs of material, labor and easement, in order to prevent inequitable
burdens on cable subscribers in more densely populated areas.
D.
For all residential structures hereinafter erected
which are to be serviced by underground utilities, the developer of
the subdivision or development may acquire cable television service
for such development under an agreement negotiated between the grantee
and such developer. Such agreement shall contain reasonable terms
and conditions prevailing in the Chester County market area. Grantee
will, with due diligence and in businesslike manner, seek to finalize
satisfactory cable television service agreement with developers who
do future construction within the Township. However, absent such agreements
the grantee shall have no obligation to serve such area. Circumstances
shall be timely reported to the Township. In those areas of the franchise
area where all of the transmission or distribution of the respective
public utilities providing telephone communications and electric service
are underground, the grantee likewise shall construct, operate and
maintain all of its transmission and distribution facilities underground;
provided that such facilities are actually capable of receiving grantee's
cable and other equipment without technical degradation of the cable
television system's signal quality. In those areas of the franchise
area where the transmission or distribution facilities of the respective
public utilities providing telephone communication and electric services
are both aerial and underground, grantee shall have the sole discretion
to construct, operate and maintain all of its transmission facilities,
or part thereof, aerially or underground. Nothing contained in this
section shall require grantee to construct, operate and maintain underground,
any ground mounted appurtenances such as subscriber taps, line extenders,
system passive devices (splitters, directional couplers), amplifiers,
power supply, pedestals or other related equipment. Notwithstanding
anything to the contrary contained in this section, in the event that
all of the transmission or distribution facilities of respective public
utilities providing telephone communication and electric services
are placed underground after the effective date of this agreement.
Grantee shall only be required to construction, operate and maintain
all of its transmission and distribution facilities underground (except
vaults) if it is given reasonable notice and access to the public
utilities facilities at the time such are placed underground.
A.
The grantee shall operate and maintain the cable television
system in full compliance with the standards established and mandated
by the Federal Communications Commission (FCC).
B.
The Township may, but shall not be obligated to, perform
technical tests of the cable television system during reasonable times
and in a manner which does not unreasonably interfere with the normal
business operations of the grantee or the cable television system
in order to determine whether or not the grantee is in compliance
with this chapter and applicable Commonwealth and Federal laws. Except
in emergency circumstances, such tests may be undertaken only after
giving grantee reasonable notice thereof, not less than five business
days, and providing a representative of the grantee an opportunity
to be present during such tests. In the event that such testing demonstrates
that the grantee has substantially failed to comply with a material
requirement hereof, the reasonable costs of such tests shall be borne
by the grantee. Except in emergency circumstances, the Township agrees
that such testing shall be undertaken no more than two times a year
in aggregate and that the results thereof shall be made available
to the grantee upon the grantee's request.
A.
Each grantee shall, at time, be subject to the provisions
of this chapter and regulations adopted by the Township in furtherance
hereof and the applicable provisions of all laws of the United States
of America and the Commonwealth of Pennsylvania. Provided, however,
nothing herein contained shall be deemed to render any grantee a public
utility except as may be otherwise provided by the laws of the Commonwealth.
B.
Whenever it is necessary to shut off or interrupt
service for the purposes of making repairs, installation or adjustments,
the grantee shall do so at time or times as will cause the least amount
of inconvenience to its subscribers, consistent with the needs and
requirements of the grantee.
C.
The grantee shall maintain a local business office,
and a local telephone service, which shall be toll free to the caller
of calls originating from within the Township, for the purpose of
receiving inquiries and complaints from the grantee's subscribers
and from the general public. Each grantee shall provide sufficient
maintenance personnel to respond to routine service calls within 24
hours during the period of 8:00 a.m. through 11:00 p.m. six days per
week, except in the case of major outages due to storms, civil unrest
or acts of God. From 11:00 p.m. to 8:00 a.m. each grantee shall maintain
a telephone answering service and shall respond to routine service
calls generated therefrom within 24 hours of commencement of business
the day following the call. Grantee shall maintain a written record
of all such calls which shall be available for inspection by the Township
Manager upon 48 hours prior oral or written request. A computerized
record of such calls shall fulfill the requirement of this subsection
provided such computerized record is backed up on a daily basis.
The grantee shall maintain on file with the
Township Secretary a schedule setting forth all rates and charges
made to subscribers for basic cable television service, including
connection and service charges. Notice of change in rates and charges
shall be filed with the Township Secretary. The grantee shall submit
such notice of rate changes at least 45 days prior to the proposed
effective date of the adjusted rates. The Township shall, at its option,
have the opportunity to meet with the grantee to discuss rate adjustment,
provided such meetings occur 30 days prior to the effective date of
such adjustment. Normal rate adjustments shall not occur more frequently
than on an annual basis with the anniversary date relative to the
adjustments understood to be the beginning and end of the annual cycle.
Intervening rate adjustments which become necessary shall be permitted
if increased operating costs are caused by increases in copyright
payments, utility pole or conduit rental, programming charges or franchise
fee. Other intervening rate adjustments shall occur through authorization
in law or through the action of an agency of government or court of
competent jurisdiction.
A.
The grantee shall pay the Township on or before the
last dates in April, July, October and January of each year, a franchise
fee equal to 5% of the basic subscriber revenues and pay service revenues
and pay-for-view revenues as defined herein, received for cable television
operations in the Township for the preceding calendar quarter and
no other fee, tax, charge or consideration unless specifically provided
for in this chapter. By April 15th of each year the grantee shall
provide an annual summary report prepared in accordance with general
accepted principles showing the gross annual subscriber revenues received
during the preceding calendar year which summary shall be attested
as true and current by a certified public accountant regularly employed
by the grantee, and grantee shall pay any unpaid franchise fee the
due for the preceding year.
B.
Each grantee shall keep true and accurate records
of accounts showing the date and amount of all payments received from
subscribers. The Township Manager or other agent(s) authorized by
the Board shall have the right, at the Township's expense, to inspect
and audit the grantee's records of all subscriber revenue at any reasonable
time.
C.
Nothing herein contained shall be construed as requiring
any grantee to pay to the Township any portion of the revenue derived
from the sale of its service to subscribers residing outside the municipal
limits of the Township; provided, however, that upon any legal boundary
change to the Township of any territory not now within its municipal
limits, the portion of the grantee's facilities that may be located
within such boundary change territory shall thereafter be subject
to all of the terms of this chapter.
A.
The grantee shall at all times protect, defend and
hold the Township harmless from all claims, actions, suits, liability,
loss, expense or damages of every kind and description including,
but not limited to, investigation costs court costs and reasonable
attorney's fees, which may accrue to or be suffered or claimed by
any person or person arising out of misconduct, negligence or alleged
contractual dispute of grantee in the ownership, construction, repair,
replacement, maintenance and operations of said cable television system,
provided that after receiving notice of such action, claims, etc.
the Township gives the grantee prompt notice of any such claims, actions,
suits, etc. in writing. The grantee shall maintain in full force and
effect during the life of any franchise, public liability and property
damage insurance for the amount of at least $1,000,000 property damage
liability from the time of commencement of construction of the cable
television system. In addition, the grantee shall carry worker's compensation
coverage for its employees. Evidence of such insurance coverage shall
be provided to the Township not less than 10 days prior to the commitment
of construction operations of the cable television system whichever
first occurs. The Township shall be a named insured under the aforementioned
public liability and property damage insurance. In addition, the Township
shall receive at least 10 days prior notice of renewals of such coverage
and at least 45 days notice of any cancellation of said insurance.
B.
Any insurance company providing coverage under the
provisions of this section must be licensed to do business in the
Commonwealth of Pennsylvania. All such insurance may contain reasonable
deductions not to exceed $1,000 for any type of coverage. At Township's
election, all investigation of claims made by any person against the
Township arising out of any use or misuse of privileges granted to
the grantee hereunder shall be made by, or at the expense of the grantee
or its insurer. The grantee may bring its obligations to carry any
insurance required hereby within the coverage of any so-called blanket
policy or policies of insurance now or hereafter carried, by appropriate
amendment, endorsement or otherwise; provided, however, the interest
of the Township shall be as fully protected thereby as if the grantee
had obtained individual policies of insurance.
C.
Grantee shall not be initially required to obtain
or maintain bonds or other surety as a condition of being award the
franchise or continuing existing. Should a bond or other surety be
required to guarantee compliance with or performance of this chapter
or a franchise agreement executed hereunder, it shall be only for
such times as there is reasonably demonstrated need therefor. In the
event that a bond or other surety is required for the future, the
Township agrees to give grantee at least 30 days prior notice, thereof
stating the exact reason for the requirement. Such reasons must demonstrate
a change in the grantee's legal, financial or technical qualifications
which would materially prohibit or impair its ability to comply with
the terms of the franchise or afford compliance therewith.
A.
Any formal inquiry, proceedings or other action taken
or proposed to be taken by the Township with respect to the operation
of any existing or proposed cable television system franchise shall
be subject to 30 days prior written notice to the franchise holder
whose right to procedural due process shall be protected at a public
hearing of the Board.
B.
The notice required by the section shall state clearly
the action or proposed action to be taken, the time provided for a
response and the person or persons in authority to whom such response
shall be addressed and such other procedure as may be specified by
the Township. Any such notice shall include the date and place of
the scheduled hearing on the proposed action. Any grantee who is the
holder of proposed holder of a franchise which is the subject of the
notice shall be necessary part to any such hearing.
C.
No hearing shall be held except upon 10 days prior
public notice published at least one time in a newspaper generally
circulating in the Township. Any existing subscriber of the subject
franchise holder or any person residing within the franchise area
of the proposed grantee may become a party to the hearing by entering
a formal written appearance with the Board prior to the hearing's
commencement.
The Township shall have the right to terminate
any cable television franchise in the event of the failure of the
franchise holder (grantee) to perform any material provision of this
chapter or in the event of any breech of the franchise agreement.
In considering termination for just cause, initiated by the Township,
the following provisions shall apply exclusively:
A.
Notice of violation. In the event that the Township
alleges that the grantee has not complied with the terms of this chapter
or the franchise agreement, it shall notify the grantee of the exact
nature of the alleged noncompliance.
B.
Grantee's right to cure or respond.
C.
Public hearing. In the event that grantee fails to
respond to the Township's notice, or in the event that the alleged
default is not remedied within 30 days after the Township's initial
notification (or any extension agreed to by the Township for performance),
the Township shall schedule a public hearing to investigate the grantee's
default. Ten days prior notice of the hearing shall be given to grantee.
The hearing shall be conducted in accordance with the Local Agency
Law.
D.
Enforcement. Subject to the applicable Federal and
Commonwealth law, in the event the Township, after hearing, determines
that the grantee is in default of its franchise agreement or any of
the provisions of this chapter, the Township may:
(1)
Foreclose on all or any part of any security
provided under this chapter, if any, including without limitation,
any bonds or other surety; provided however, such foreclosure shall
only be in such manner and in such amount as the Township reasonably
determines is necessary to remedy default.
(2)
Commence an action for equitable relief, monetary
damages or both.
(3)
Revoke the franchise agreement and terminate
the grantee's right to operate a cable television system within the
Township.
(4)
Seek specific performance of any provision of
the franchise agreement, plus damages, if applicable.
E.
The grantee shall not be relieved of any of its obligations
to comply promptly with any provisions of this chapter or the franchise
agreement by reason of any failure of the Township to enforce prompt
compliance. The Township's waiver of grantee's noncompliance or default,
at any time, shall not act as a waiver of any future default. Provided,
however, grantee shall not be held in default or noncompliance, nor
suffer any enforcement or penalty relating thereto, where such is
caused by strikes, act of God, power outages or other events reasonably
beyond its ability to control.
F.
Upon expiration of its franchise, should the grantee
not have acquired an extension or renewal thereof and accepted the
same, it may have and it is hereby granted the right to enter upon
the public way or other Township property, subject to the requirement
that it restore any disturbed areas to the condition immediately preexisting
such removal. As a condition precedent thereto, the grantee shall
compute and pay to the Township any and all sums then due and owing,
computed as the effective date of the franchise termination. All final
payments shall be due within 45 days of the termination date.
A.
The grantee shall not sell or transfer its plant or
cable television system to another, other than an affiliate, nor transfer
any rights acquired under this chapter or specified in the franchise
agreement to another without the Board's prior written approval, following
a hearing. No sale or transfer of the grantee's assets in the performance
of this franchise shall be effective until the vendee, assignee or
lessee has filed with the office of the Township Secretary an instrument
duly executed reciting the fact of such sale, assignment of lease,
accepting the terms of the franchise agreement and agreeing to perform
all of the terms and conditions thereof. The Board's approval shall
not be unreasonably withheld and neither this section nor other sections
of this chapter shall preclude the mortgaging, hypothecating or assigning
of rights in the system or the pledge of stock by the grantee for
the purpose of financing, provided that such mortgage, hypothecation
or assignment is subordinate to the rights of the Township.
B.
If a renewal of grantee's franchise is denied and
the Township either acquires ownership of the cable television system
or by its actions effects a transfer of ownership of the cable television
system to another person or entity, any such acquisition or transfer
shall be at fair market value, determined on the basis of cable television
system valued as an on-going concern. If grantee's franchise is revoked
for cause and the Township acquires ownership of the cable television
system or by its actions effects a transfer of ownership of the cable
television system to another person or entity, any such acquisition
or transfer shall be at an equitable price. In the event of a revocation,
at the grantee's request, which shall be made in its sole discretion,
grantee shall be given a reasonable opportunity to effectuate a transfer
of its cable television system to a qualified third person or entity
reasonably acceptable to the Township at fair market value, determined
on the basis of the cable television system valued as an on-going
concern. Grantee shall notify Township of such election not later
than 30 days after such revocation. Until consummation of such transfer,
at the sole discretion of the Township, the grantee may continue to
operate pursuant to the terms of its prior franchise, however, in
no event shall such authorization exceed a period of time greater
than six months from the effective date of such revocation. If, at
the end of that time, grantee is unsuccessful in procuring a qualified
transferee or assignee of its cable television system, which is reasonably
acceptable to the Township, grantee and Township may avail themselves
of any rights they may have pursuant to applicable law. Grantee's
continued operation of its cable television system during the six
month period shall not be deemed as a waiver, nor an extinguishment
of any rights of either the Township or grantee.
From and after the effective date of this chapter, it shall be unlawful for any person to construct, install or maintain with any public way in the Township, or any other public or private property within the Township, any equipment or facilities for the transmission and distribution of audio, digital and video impulses, including television and radio signals, through a cable television system unless a franchise authorizing such use has first been obtained from the Township and unless and until such franchise is in full force and effect. Should any person (a grantee is a person) violate any of the terms, conditions or provisions of this chapter or of a franchise agreement, or fail regulating the use by any person of the public way or if any grantee shall violate any other lawful rule or regulation applicable to it, Township, Commonwealth or Federal, and continue to violate the same for a period of 30 days after notification in writing to desist from such violation, the grantee may at the Township's option, be deemed to be in default of its franchise and have forfeited and annulled all of its rights and privileges granted under this chapter and the franchise agreement and such franchise may be terminated by the Township. Any notice given pursuant to § A235-17A shall be deemed to have fulfilled the 30 day notice to this section.
Any cable television franchise operating within the Township existing on the effective day of this chapter shall be subject to its provisions. Within 30 days following adoption of this chapter the Township shall undertake proceedings pursuant to § A235-5 hereof to determine renewal of any existing franchise, which franchise shall then be subject to all of the terms and conditions of this chapter. Within 30 days after the Board authorized renewal, the Township and the grantee thereof shall enter into a revised cable television franchise agreement complying with the provisions of this chapter. Failure on the part of any existing franchise holder to comply with the renewal process shall subject it to the termination provisions of § A235-15 thereof.
