[HISTORY: Adopted by the Borough Council
of the Borough of Kutztown as indicated in article histories. Amendments
noted where applicable.]
[Adopted 7-16-2002 by Ord. No. 9-2002]
This article shall be known and may be cited
as the "Fiber-Optic Communications Network Standards" of the Borough.
This article is enacted pursuant to the authority
of the laws of the Commonwealth of Pennsylvania and the United States
of America, including, but not limited to, § 1201(4) of
the Pennsylvania Borough Code (53 P.S. § 46201(4)), § 2471
of the Pennsylvania Borough Code (53 P.S. § 47471), §§ (31)
and (74) of § 1202 of the Pennsylvania Borough Code (53
P.S. §§ 46202(31) and 46202(74)), and the Federal Telecommunications
Act of 1996 (47 U.S.C. § 151, et seq.), as each of the same
is amended from time to time, which provisions authorize the Borough
to enact all such ordinances, rules and regulations as may be expedient
or necessary for the proper management, care and control of the Borough
and its finances and the maintenance of peace, good government, safety
and welfare of the Borough, and its trade, commerce and manufactures
and to own, operate and manage the network.
The Borough provides electric power, water supply,
wastewater treatment and solid waste disposal and recycling services
to its residents and property owners. The Borough initially constructed
a portion of the network for the purpose of operating, managing, monitoring,
metering and billing such utility services, as well as for the purpose
of augmenting the Borough's capability to provide security for such
public utility facilities and to protect the public health, safety
and welfare through augmented police protection capabilities. After
extensive study, the Borough has concluded that the public health,
safety and welfare will be further protected and improved by utilizing
the network to also provide the services. The purpose and intent of
this article is to set forth provisions governing that portion of
the operations of the network which will consist of the rendering
of the services to consumers (as defined hereinbelow in this article),
and to provide rates, charges and regulations which shall be applicable
to the use of such services by the consumers.
A.
Application of article. This article shall apply to
the use and operation of the network for all purposes and by all persons
except such use of the network as may be made by the Borough in the
performance of its governmental and proprietary functions, including,
without limitation, use of the network in the regulation and operation
of the public utility facilities and operations of the Borough.
B.
Administration. The Borough Manager shall administer
the provisions of this article and may make rules, regulations, procedures,
and forms of application and service contracts, as may be necessary
or desirable for the administration of this article. Such rules, regulations,
procedures, and forms of application and service contracts shall not
be in conflict with this article and shall be submitted to the Borough
Council for approval. If the rules, regulations, procedures, and forms
of application and contracts so submitted to the Borough Council are
approved by the Borough Council, the same shall be filed in the office
of the Secretary of the Borough of Kutztown.
C.
Trade name. Services may be marketed and sold as Hometown
Utilicomsm services. The Borough utilizes
and owns the name Hometown Utilicomsm,
and related marks or logos, as a service mark, trade name and fictitious
name in the provision of utility services to its customers. References
herein to the Borough shall be deemed to refer to the Borough in all
matters involving the network, including in those instances when the
Borough identifies itself as Hometown Utilicomsm.
A.
Word usage. Unless otherwise expressly stated, the
following terms shall, for the purpose of these regulations, have
the meanings indicated:
(1)
Words in the singular include the plural, and those
in the plural include the singular.
(2)
Words in the present tense include the future tense.
(3)
The words "person," "applicant" and "consumer" shall
include a firm, corporation, association, trust, partnership, or other
legal entity, as well as an individual.
(4)
The words "should" and "may" are permissive; the words
"shall," "must" and "will" are mandatory and directive.
(5)
Words in the masculine gender include the feminine
and the neuter.
B.
APPLICANT
APPLICATION
BOROUGH
BOROUGH COUNCIL
BOROUGH MANAGER
BUILDING
CODE OFFICER
CONSUMER
CONSUMER'S INSTALLATION
DEMARCATION UNIT
INTERNET
NETWORK
NETWORK HAZARD
POINT OF DEMARCATION
SCHEDULE OF RATES AND SERVICES
SERVICE(S)
SERVICE CONTRACT(S)
UNIT(S)
WHOLESALE PROVIDER
Definitions. Other terms or words used herein shall
be interpreted or defined as follows:
The person who or which applies to the Borough to obtain
service.
The form to be completed and executed by any person who or
which desires to obtain service from the Borough. The application
shall be in such form as may be set forth by the Borough Manager.
[Amended 5-20-2008 by Ord. No. 4-2008]
The Borough of Kutztown, Berks County, Pennsylvania, and
its authorized agents, contractors and successors and assigns.
The Council of the Borough of Kutztown.
The corporate official appointed by the Borough Council as the Borough Manager in accordance with Chapter 29 of the Code of the Borough of Kutztown or such officials properly designated representative.
Any combination of materials forming any structure which
is erected on the ground and permanently affixed thereto, designed,
intended or arranged for the housing, sheltering, enclosure or structural
support of persons, animals or property of any kind.
The person so designated in accordance with Chapter 11 of the Code of the Borough of Kutztown.
The person being served by or using the service.
Except as provided in § 110-6A of this article, all wire, coaxial cable, fiber-optic cable, electrified metallic-wire cable, switches, transformers, circuit breakers, computers, peripheral equipment, televisions, telephones, and other appliances, apparatus and equipment of every kind and nature whatsoever used in connection with or forming a part of an installation for utilizing service for any purpose ordinarily located on the consumer's side of the point of demarcation, whether such consumer's installation is owned outright by the consumer or used by the consumer under lease or otherwise.
Any home, business or multiple unit demarcation device and
enclosure box, which is intended to serve as the interface device
between the network and the conventional or traditional wiring of
the unit(s), as well as any functionally similar device and enclosure
box, the purpose of which is to convert light signals emanating from
the fiber-optic cables of the network into electrical signals for
transmission to the consumer's installation at the point of demarcation
contained in such demarcation unit. The term "demarcation unit" shall
include devices which serve a single unit and devices which serve
more than one unit. The version of a demarcation unit currently in
use by the Borough is commonly referred to as a "fiberpoint."
The global computer network comprising interconnected networks
using standard protocols, including the World Wide Web or WWW.
Fiber-optic cables, connectors, demarcation units, utility
poles, conduits, transmitting and switching equipment, television
headend equipment, antennas and receivers, computers, and other facilities
and properties, together with the appurtenant equipment, facilities
and properties which the Borough now owns or hereafter may acquire
from time to time, including all property (real, personal and mixed),
rights, powers, licenses, easements, rights-of-way, privileges, franchises
and other property and interests in property of any nature whatsoever
used or useful in connection with all such facilities and together
with all additions, extensions, alterations and improvements thereof
or thereto which may be made or acquired from time to time by the
Borough, including all such facilities and property located upon,
over, across, or under any lands or building not owned by the Borough,
up to each point of demarcation and including the demarcation unit.
Condition posing an actual or potential threat of damage
to the physical properties of the network, the consumer's installation
or an endangerment to the public's safety, health and welfare, including,
but not limited to, any such condition posing an actual or potential
disruption or interruption of communication on the network.
The point in the demarcation unit where the network is connected
to the connecting leads of the consumer's installation.
The schedule of rates and services adopted by the Borough Council under the authority of this article, including, but not limited to, §§ 110-11 and 110-12, and included in Chapter A231 of the Code of the Borough of Kutztown, as the same may be modified, amended, restated, expanded and/or superceded from time to time.
The furnishing or delivery of video, voice and/or data services,
and/or other services utilizing video, voice and/or data communications
to supply such service, by the Borough to consumers, as referred to
in this article, in the schedule of rates and services, and in service
contracts with consumers.
The contracts and agreements by and between the consumer
and the Borough, either written or agreed to by the consumer by virtue
of receiving service from the Borough, for the furnishing of services
by the Borough to the consumer, all as is more fully described in
this article and in the schedule of rates and services. The service
contract shall be in such form as may be set forth by the Borough
Manager.
[Amended 5-20-2008 by Ord. No. 4-2008]
Any individual residential dwellings, residential dwelling
units, commercial occupancies, industrial occupancies, public and/or
institutional occupancies, as well as any other building, or portion
thereof; inhabited, occupied or utilized by a consumer.
Any person (excluding the Borough) who or which is supplying
video, voice and/or data services directly to users of the network
and is subject to either a tariff or wholesale agreement under § 100-12
of this article.
A.
Retail use. Except to the extent provided for and permitted by § 110-12 of this article, pertaining to tariffs and wholesale agreements, service shall not be used by any consumer for any purpose or in any place other than that stipulated in the service contract and in the schedule of rates and services, nor shall service supplied by the Borough be resold, on either a wholesale or retail basis, or used by any person other than the consumer contracting with the Borough, except with the prior written permission of the Borough.
B.
Bound by regulations. Each applicant, upon entering
into a service contract with the Borough and becoming a consumer pursuant
to the terms thereof, shall also be deemed to have agreed to be bound
by and subject to the terms of this article, the schedule of rates
and services, and all regulations promulgated under the authority
of this article, as the same may be amended from time to time.
C.
Unauthorized use. Unauthorized connection to the network
may be terminated by the Borough without notice. Use of any service
without first notifying the Borough, or the provision of any service
to network users by a person who is not a wholesale provider is strictly
prohibited, and may subject the unauthorized user to prosecution,
fines and penalties.
D.
Illegal use. The network may be used only for lawful
purposes. Transmission, distribution or storage of any material in
violation of any applicable law or regulation is prohibited.
E.
Prohibited network use. The Borough may from time
to time promulgate rules and regulations which further define uses
of the network which are prohibited and which define privacy rules
and expectations for network use. Consumers may be subject to criminal
and civil liability as a result of their violation of such rules and
regulations. The Borough may investigate any potential violations
of such rules and regulations and will take appropriate enforcement
measures if violations are suspected.
A.
Notice of network hazard. The consumer shall immediately
notify the Borough promptly of any network hazard that the consumer
may discover. Such notification shall be made to such persons and
in such manner as the Borough may designate from time to time.
B.
Continuity of service. The Borough will use reasonable
diligence to preserve, as nearly as possible, the continuity and availability
of service provided to consumers, subject to:
(1)
Acts of God or of a public enemy;
(2)
Fires, severe weather, floods, earthquakes, natural
disasters, explosions or other catastrophes;
(3)
Embargoes, epidemics or quarantine restrictions;
(4)
Technical causes beyond the control of the Borough
in furnishing services, including, but not limited to, breakdown or
failure of equipment and failure of outside communications capabilities
interfacing or connecting with the network and the Internet; and/or
(5)
Unauthorized, intentional and/or negligent acts constituting
a network hazard, including, without limitation, computer viruses
and attempts to overload computers or the network;
(6)
Delays of suppliers or transportation;
(7)
Shortages of goods, labor strikes, labor slowdowns,
differences with workers or labor stoppages of any kind; and/or
(8)
Acts of the United States or any state or subdivision
or instrumentality thereof; except the Borough.
Acceptance and receipt of service shall be deemed
conclusive evidence that the recipient has agreed to the following:
A.
Liability limitations. The services provided by the
Borough (and any information, data and software contained therein
or in the network) are provided as is and as available, without warranty
of any kind to consumer or any third party, including, but not limited
to, any express or implied warranties of merchantability; fitness
for a particular purpose; effort to achieve purpose; quality; accuracy;
noninfringement; quiet enjoyment; title; and continuity, reliability
and availability of service. The consumer agrees that any efforts
by the Borough to modify its services shall not be deemed a waiver
of these limitations, and that any Borough warranties shall not be
deemed to have failed of their essential purpose. The consumer further
agrees that the Borough shall not be liable to the consumer or any
third party for any loss of profits, loss of use, interruption of
business, or any direct, indirect, incidental or consequential damages
or any penalties of any kind whether under this article, any service
contract, or otherwise, even if the Borough was advised of the possibility
of such damages or was grossly negligent. The Borough's liability
is limited to the greatest extent permitted by law. Acceptance of
delivery of services shall constitute a waiver and release of the
Borough by the consumer for any claim for damages, setoff, discount
or other liability on account of delay.
B.
Third-party transactions at consumer's peril. The
consumer expressly recognizes that the Borough does not operate, control
or endorse any information, products or services offered on the Internet,
and that any entities that do offer such information, products or
services are not affiliated with the Borough. The Borough does not
make any express or implied warranties, representations or endorsements
to the consumer or any third party whatsoever with regard to any information,
products or services provided through the network and obtained or
contracted over the Internet, including, without limitation, warranties
of merchantability; fitness for a particular purpose; effort to achieve
purpose; quality; accuracy; noninfringement; quiet enjoyment; title;
and continuity, reliability and availability of service. The Borough
shall not be liable to any consumer or any third party for any cost
or damage arising either directly or indirectly from any transaction
involving the information, products or services offered by third parties
or by the consumer.
C.
Downloading of data or files at consumer's peril.
The consumer expressly recognizes that the Borough cannot and does
not guarantee or warrant that files available for downloading through
the network will be free of infection, viruses, worms, Trojan horses
or other code that manifests contaminating or destructive properties.
The consumer agrees that it shall be solely responsible for implementing
sufficient procedures to satisfy the consumer's particular requirements
for accuracy of data input and output and for maintaining a means
external to the network for the reconstruction of any lost data. The
consumer also expressly recognizes that the Internet contains unedited
materials, communications and conduct, some of which are unlawful,
indecent or may be offensive to the consumer, and access to such materials,
communications and conduct by the consumer is done at the consumer's
sole risk.
A.
Application and service contract. Receipt of the service
shall constitute the receiving person a consumer of service under
this article and subject the consumer to its rules and regulations.
Any person desiring to receive service may be required to complete
an application for service. The Borough may, at its discretion, require
the applicant to sign a written service contract setting forth the
conditions under which service is to be supplied.
[Amended 2-21-2006 by Ord. No. 1-2006]
B.
Right to reject application. The Borough reserves
the right to reject, for any valid reason, any application. The Borough
may require service contracts for a suitable period of time and reasonable
guaranties when unusual expense is necessary to furnish the service.
C.
Right-of-way and access to property. The consumer
shall provide (or shall cause the landlord of the consumer to provide),
without charge (unless a change is agreed upon in writing by the Borough),
a right-of-way acceptable to the Borough for fiber-optic cables, demarcation
units and other network facilities across, over, under and on property
owned or controlled by the consumer (or the consumer's landlord) as
in the judgment of the Borough are necessary to furnish the service.
When the premises of the consumer (or the consumer's landlord) is
so located that right-of-way across, over, under and on the property
of another person is required for the supply of service, the consumer
(or the consumer's landlord) shall reimburse the Borough for any and
all costs incurred by the Borough in acquiring such a right-of-way.
The Borough shall have the right to request the consumer (or the consumer's
landlord) to deposit with the Borough the estimated costs to be incurred
before undertaking to acquire the right-of-way. In addition, the consumer
shall provide the Borough with access to indoor facilities for the
installation of power backup battery modules and any necessary electrical
power connection for the demarcation unit.
D.
Short-term service contracts. Service may be supplied
under the rate applicable under the schedule of rates and services
for periods less than the standard service contract period. In the
case of such seasonal or short-term consumers, the Borough may require
such consumers to a guaranty in advance, said advance to apply on
bills rendered during such seasonal or short-term service contracts.
E.
Prior debts. Service and a service contract will not
be furnished to a former consumer until any indebtedness of said former
consumer to the Borough for previous service rendered to such consumer
has been satisfied, unless otherwise permitted by rules and regulations
adopted hereunder.
A.
Deposits. A deposit may be required from any consumer
to insure payment of any bill in compliance with this article, the
schedule of rates and services, and all other applicable rules and
regulations. A consumer whose credit standing has become impaired
through failure to pay service bills may be required to furnish an
additional deposit.
B.
Amount of deposits. Deposits required from consumers entering into a service contract for a period of less than 30 days shall equal the estimated gross bill for such temporary period. Deposits required from all other consumers shall be in accordance with the schedule of rates and services which shall be determined from time to time by resolution of Borough Council. In the event that any consumer is delinquent in the payment of a service bill, as hereinafter provided in § 110-13 of this article, more than one time within any six-month period, then, upon notice from the Borough to the consumer, the consumer shall be required to post a deposit, in the amount set forth in the schedule of rates and services, within 10 days from the receipt of such notice, and in the event that the consumer shall fail to post such deposit, the Borough shall discontinue the provision of service to the consumer.
C.
Interest on deposits. No interest shall be payable
by the Borough on any deposits.
D.
Refund of deposits. Upon discontinuance of service,
the Borough may apply any deposit then in its possession toward the
final settlement of the consumer's account, and any remaining balance
thereof will be refunded to the consumer.
A.
Approved services. Only those services which have
been approved by resolution of the Borough Council for inclusion in
the schedule of rates and services shall be made available to consumers
by means of the network. The delivery of any product or service by
a wholesale provider to any person by means of the network shall be
subject to such approval by resolution of the Borough Council.
B.
Service criteria. The Borough Council may, by resolution,
from time to time adopt rules, regulations and criteria which shall
govern whether or not a product or service is suitable or permissible
for inclusion as a service.
C.
New service requests. If a consumer desires to obtain,
by means of the network, a particular product or service which is
not currently a service, the consumer shall deliver a written request
for such service to the Borough Manger, who shall, after due investigation,
forward such request to the Borough Council with a recommendation
as to whether or not the proposed service should be included as a
service.
A.
Consumers. The rates, charges and fees applicable to the services
and payable by consumers as well as all ancillary fees and charges
to consumers pursuant to this article, such as installation charges,
are hereby imposed and shall be such as are approved by the Borough
Council by resolution, from time to time, as part of a schedule of
rates and services to be kept on file in the office of the Borough
Secretary and made available to the public for inspection during the
normal hours of operation of the Borough of Kutztown.
[Amended 8-18-2009 by Ord. No. 7-2009]
B.
Tariffs and wholesale agreements. In those instances
where the Borough is willing to make the network available to a wholesale
provider, in order to permit the wholesale provider to directly deliver
video, voice and/or data services to network users, the terms and
conditions of such network usage by the wholesale provider, including
all fees and charges payable by the wholesale provider to the Borough,
shall be governed by:
(1)
A tariff applicable and available to all wholesale
providers offering services of the same type and character (subject
to network availability and capacity) and which is adopted as part
of the schedule of rates and services. Such tariff may require the
execution of a contract with the Borough setting forth additional
terms and conditions; or
(2)
A wholesale agreement by and between the wholesale
provider and the Borough, subject to all statutory prerequisites to
the award and execution of such wholesale agreement.
[Amended 1-28-2003 by Ord. No. 14-2002]
All bills for service shall be rendered by the
Borough monthly for services to be rendered in the immediately succeeding
month. Such bills shall include the service charges for the immediately
succeeding month, reflecting the service and consumption for which
the consumer currently has a service contract at the time of billing.
All such bills shall be due and payable on or before the due date
set forth on the bill. All bills remaining unpaid after the due date
may be subject to a penalty and interest as adopted from time to time
by resolution of Borough Council as part of the schedule of rates
and services, which penalty plus interest shall be computed on the
unpaid balance. Adjustments to reflect changes to the services which
a consumer actually received during the month, including new services
and any disconnections, shall be reflected in the monthly billing
issued after such month.
A.
Nonpayment shutoff. In the case of any failure of
a consumer to pay any bill for services within three days of the date
due, the Borough reserves the right to disconnect service to such
consumer on five calendar days' notice and, if the Borough so desires,
to remove the Borough's equipment.
B.
Violation of rules and regulations. The Borough may,
upon five days' notice, disconnect service to any consumer because
of violation of this article or any of the applicable rules and regulations
promulgated pursuant to the authority of this article.
C.
Safety shutoff. The Borough may disconnect without
notice its service to any consumer if the consumer's installation
has become dangerous or defective or if the consumer's installation
is determined by the Borough to interfere with the operation of the
network or to otherwise violate this article, the rules and regulations
promulgated hereunder or other applicable law. Upon correction of
the dangerous, defective or interfering condition, the Borough will
restore service upon payment of its disconnection and reconnection
costs.
D.
Shutoff
for fraud or illegal use. The Borough may disconnect without notice
its service to any consumer and remove the Borough's equipment
for abuse, fraud, tampering with the demarcation unit or other equipment
of the Borough or for verified illegal use.
[Amended 5-20-2008 by Ord. No. 4-2008]
E.
Reconnection charge. Service disconnected by the Borough under the provisions of Subsections A, B and D of this section will be restored only on payment in advance of a fee, which shall be from time to time determined by resolution of Borough Council as part of the schedule of rates and services, in addition to all arrearages due by the consumer. Service will be restored only on payment to the Borough of all costs of discontinuance and restoration, in addition to all such arrearages, including penalties and interest, in those instances where the Borough removed its equipment.
F.
Tenant rights. In cases involving a residential rental
unit, the procedures to be followed to effect a disconnection or termination
of service by the Borough shall comply with the Pennsylvania Utility
Service Tenants Rights Act, Act No. 299 of 1978,[1] as amended from time to time and as applicable to the
Borough.
[1]
Editor's Note: See 68 P.S. § 399.1
et seq.
G.
Suspected illegal use. The Borough may, upon five days' notice,
disconnect service to any consumer because of a suspected illegal
use, if the consumer does not, within five days of receiving notice,
verify to the Borough that all services are being used in compliance
with all applicable law.
[Added 5-20-2008 by Ord. No. 4-2008]
H.
Bound by the third party terms. The Borough may disconnect without
notice its service to any consumer whom the Borough has received notice
from its third party internet bandwidth service provider that the
customer has violated the terms of service of the Borough's third
party internet bandwidth service provider. The terms of service of
the Borough's third party internet bandwidth service provider
shall be available to all consumers at the Borough Municipal building.
[Added 5-20-2008 by Ord. No. 4-2008]
I.
Trademark. The Borough may, upon five days' notice, disconnect
service to any consumer because of suspected trade mark violation,
if the consumer does not, within five days of receiving notice, verify
to the Borough that a trademark violation has not occurred, or has
been corrected.
[Added 5-20-2008 by Ord. No. 4-2008]
A.
Notice to discontinue. The consumer shall give the
Borough at least three working days' notice to discontinue service,
and the consumer shall be liable for service taken until the service
disconnect date specified by the consumer. Such notice prior to the
expiration of a service contract term will not relieve the consumer
from any minimum or guaranteed payments under any contract or under
the schedule of rates and services.
B.
Final bill. The final bill for service is due and
payable immediately after notice is received by the Borough to discontinue
service and the final billing is sent to the consumer.
A.
Facilities supplied by Borough. The Borough will install
on the private property of a consumer (or on the property of the landlord
of the consumer), and for the exclusive use of such consumer, the
demarcation unit, a fiber-optic cable connection extending from the
network to the demarcation unit, and such other appurtenant equipment
and facilities as the Borough deems necessary to provide power for
the demarcation unit and a connection from the demarcation unit to
any network interface device (even though such cables and equipment
may be on the consumer's side of the point of demarcation). All other
wiring and equipment on private property of the consumer and all portions
of the consumer's installation which is not installed by the Borough
shall be furnished and installed by the consumer, as provided for
and regulated by this article. The Borough shall not in any manner
be responsible for any portion of the consumer's installation. The
cost to the consumer of the aforesaid demarcation unit and fiber-optic
cable to be supplied by the Borough shall be set forth in the schedule
of rates and services.
B.
Connection. Only the Borough, or the agents of the
Borough, or a wholesale provider, in the case of a service provided
by such wholesale provider, shall make connections of the consumer's
installation to the network at the point of demarcation in the demarcation
unit.
C.
Location. In general, a demarcation unit will be located
on the outside of the building. If an outdoor location is not practical,
a demarcation unit may be located at another location approved by
the Borough. The inside and/or outside location selected shall be
accessible at all times to both the consumer and the Borough. The
location shall be clear of all heating systems, plumbing and other
obstructions, and there shall be not less than three feet of clear
area in front of the demarcation unit. The placement of the demarcation
unit shall be in accordance with the Borough policy as determined
by the Borough.
D.
Extensions. The Borough shall have no obligation to
extend its facilities for a consumer to a new point of demarcation,
after the installation of a demarcation unit. Where a consumer makes
a request for such extension, the Borough will determine in each case
what guaranties of revenue, financing or terms of service contract
shall be required of the consumer.
A.
Right to remove Borough's equipment. All demarcation units, fiber-optic cable or other equipment supplied by the Borough, as described in § 110-16A of this article, shall remain its exclusive property. The Borough shall have the right to remove all of its property serving a consumer from the premises of that consumer or any other person at any time after the termination of service, whatever may have been the reason for such termination.
B.
Interference with Borough's property. Where the service
has been disconnected or reconnected without the permission of the
Borough and the demarcation unit or other equipment has been tampered
with, resulting in improper measurement of the service supplied, the
consumer served by such equipment shall be required to pay for such
service as the Borough may estimate, from available information, to
have been used but not registered by the Borough and, in addition
thereto, such consumer shall be required to bear all costs incurred
by the Borough for investigations, inspections, and repairs and for
such protective equipment as, in the judgment of the Borough, may
be necessary. Willful or intentional tampering with the Borough's
equipment is a violation of this article and subject to prosecution.
C.
Equipment tests. The Borough, at its own expense,
will make periodic tests and inspections of its network and demarcation
units in order to maintain them at the proper standard of performance,
but the Borough reserves the right to make a charge, at a rate as
shall be determined by Borough Council as part of the schedule of
rates and services for any additional tests or inspections made at
the request of the consumer, provided that such test finds the Borough's
equipment to be within prescribed tolerances of performance.
All portions of the consumer's installation
to which the Borough supplies service shall conform, as applicable,
to the following requirements. The Borough Council may adopt, from
time to time, rules and regulations regarding any necessary specifications
and operational parameters for the consumer's installation.
The Borough Council may adopt, from time to
time, rules and regulations regarding the providing of service to
multiple buildings for a single consumer.
The Borough Council may adopt, from time to
time, rules and regulations regarding the providing of service to
multitenant or multiunit buildings.
A.
Right to inspect. The Borough shall have the right, but shall not be obliged, to examine the consumer's installation at the time service is first supplied or at any time thereafter, in accordance with § 110-24 of this article.
B.
Defective installations. If at any time all or any
portion of the consumer's installation is determined by the Borough
to be defective or dangerous, service may be refused or discontinued
until the consumer has the condition corrected.
C.
Consumer's responsibility. The consumer assumes full responsibility for the service at and from the point of demarcation thereof. The consumer is responsible for the risk of damage to property and the risk of fire or personal injury resulting from improper wiring and manner of attachment or use and maintenance of electrical wiring, equipment, appliances, fixtures and apparatus, and all installations, changes, alterations, additions or repairs to any part of the consumer's installation which do not constitute consumer products or equipment permitted to be installed by nonelectricians, shall be made in accordance with Chapter 107 of the Code of the Borough of Kutztown. The consumer shall indemnify, save harmless and defend the Borough against all claims, demands, costs or expenses for loss, damage or injury to persons or property in any manner directly or indirectly arising from, connected with or growing out of the transmission or use of services by the consumer at or on the consumer's side of the point of demarcation. This indemnification shall include if employees of the Borough attempt to correct any problems on the consumer's side of the point of demarcation.
[Amended 5-20-2008 by Ord. No. 4-2008]
A.
Notice. Whenever the Borough, through the Borough Manager or the
Code Officer believes or has cause to believe that there has occurred
and/or is continuing any violation of the provisions of this article
or any rules, regulations, or resolutions adopted pursuant to this
article, whether such violation is observed by the Borough Manager
or Code Officer or the Borough Manager or the Code Officer acts in
consultation with the Borough's technical staff and consultants,
the Borough Manager or the Code Officer shall give notice of such
violation to each person responsible therefor, and such notice shall:
[Amended 5-20-2008 by Ord. No. 4-2008]
(1)
Be in writing and state the place and location of the violation;
(2)
State the nature, condition and manner of the violation;
(3)
State the determination of the Borough Manager or the Code Officer
with respect to the violation;
(4)
State the name of the consumer and each other person deemed responsible
by the Borough Manager or the Code Officer for such violation;
(5)
State the date of the notice and the period of time, if any, allowed for compliance with this article, as such period of time is specified in Subsection B of this section;
(6)
Be served upon the consumer involved and all other persons, if any, named in the notice pursuant to Subsection A(4) of this section, and service of such notice shall be made upon the consumer and each such other person, if any, either personally or by certified first class mail, return receipt requested, postage prepaid, sent to the last known address of such owner and such other person.
B.
Time. The period of time within which a consumer and each other person determined to be responsible, pursuant to Subsection A(4) of this section, for any violation shall comply with the specific provisions of this article, following the issuance of a notice, shall be the period of time determined by the Code Officer, taking into consideration the nature of the violation, the degree of danger to public health and safety posed by such violation, any resulting network hazard, and the advice of the Borough's technical staff and consultants. The notice of any violation may require immediate compliance with this article (any such notice requiring immediate compliance hereinafter referred to as an "emergency order") when it is determined by the Code Officer that the violation in question presents an immediate and present danger or nuisance to the health, safety and welfare of the public, such as a network hazard which may impede vital communications, and, in such cases, notice of the violation constituting such emergency order may be verbal (which verbal notice shall thereafter be confirmed with a written notice) and shall be served personally upon the consumer and each other person, if available, who has caused or is responsible for or in control of said violation, and such notice constituting such emergency order may require the immediate correction and discontinuance of the violation and compliance with this article.
C.
Legal proceedings. In case of violation of this article,
the Borough, through the Borough Manager or Code Officer, in addition
to other remedies, may institute any appropriate action or proceeding
to prevent, restrain, correct or abate such violation or to prevent
any act, conduct, business or use constituting such violation. In
view of the critical importance to the public of maintaining the availability
and integrity of communications on the network, all network hazards
are hereby deemed to be public nuisances and, as such, shall be abatable
by the Borough through appropriate proceedings at law and/or in equity.
D.
Borough abatement. Notwithstanding the imposition
of any penalty prescribed in this article, upon the neglect, failure
or refusal of any person to comply with the requirements of this article,
following the expiration of the period of time, if any, set forth
in any notice of violation of this article, the Borough may, but shall
not be required to, perform or cause the performance of work or other
actions necessary to remove, correct, remedy, alter or otherwise abate
the conditions which constitute the violation of this article. Any
person who is found to have violated any provisions of this article
shall, in addition to the penalties provided for herein, bear all
costs incurred by the Borough in the event that the Borough has elected
to perform or cause to be performed any such remedial action. Any
such costs may be collected by the Borough from any such person in
the manner provided by law.
Borough representatives, who are properly identified,
shall have full and free access to the premises of each consumer and
to any premises on which any portion of the network, including, but
not limited to a demarcation unit, is located at all reasonable times
(between 6:00 a.m. and 10:00 p.m. prevailing time) for the purpose
of inspection and repairs, for removal of Borough property or for
any other purpose incident to the service. The consumer should immediately
contact the Borough in case of any question as to the authority or
credentials of Borough representatives.
A.
Stop work. The Borough Manager, Code Officer or other designated employee shall have the authority to stop work on a consumer's installation when such work is being performed in a manner not in conformity with Chapter 107 of the Code of the Borough of Kutztown or this article or upon notification of an authorized inspection agency.
B.
Discontinue use. In the case of an existing consumer's installation, if upon inspection it is found that the existing consumer installation is defective and/or unsafe, or is or may be harmful to the network, upon notification by the Borough Manager and/or Code Officer, all use thereof shall be discontinued until it has been corrected and made to conform to the requirements of Chapter 107 of the Code of the Borough of Kutztown and this article and approved by an authorized inspection agency or the Borough as provided for in Chapter 107 of the Code of the Borough of Kutztown.
Any person subject to the provisions of this
article who or which shall in any way violate any provisions of this
article, or use or render any service, or who or which shall do or
perform any work or who or which, as owner or lessee, shall permit
any work to be done or performed, or use or render any service, as
provided herein without complying with the provisions of this article,
shall, upon conviction thereof before any District Justice, be fined
an amount not less than $50 nor more than $1,000 for each offense
and, in default of payment thereof, undergo imprisonment in the county
jail for a period not exceeding 30 days. Each day that a violation
continues shall be deemed as a separate offense.
Any person shall have the right to appeal or request a permitted modification or waiver with respect to a decision under this article and/or any rules and regulations promulgated hereunder, by the Borough Manager, Code Officer or other official of the Borough of Kutztown. An application for appeal or request for permitted modification or waiver shall be based on a claim that the true intent of this article or the rules and regulations adopted hereunder have been incorrectly interpreted, the provisions of this article or do not fully apply. Such appeals and requests shall be filed and heard as prescribed in Chapter 12 of the Code of the Borough of Kutztown.
A.
Conflicts. Whenever there is a difference between
the minimum standard specified in this article and those included
elsewhere in the Code of the Borough of Kutztown or in other Borough
regulations, the more stringent requirement shall apply.
B.
Repealer. Except as provided in § 110-28 of this article, all existing ordinances or parts of ordinances and provisions of the Code of the Borough of Kutztown which are contrary to the provisions of this article are hereby repealed to the extent necessary to give this article full force and effect.
It is the intention of the Borough Council that
each separate provision of this article shall be independent of all
other provisions herein and is further the intention of the Borough
Council that if any of the provisions of this article be declared
to be invalid, all other provisions hereof shall remain valid and
in full force and effect.
This article shall become effective after enactment
on the earliest date permitted by law.
[Adopted 10-20-2009 by Ord. No. 12-2009; amended in its entirety 9-20-2011 by Ord. No.
10-2011]
The short title of this article shall be the "Borough of Kutztown
Telecommunications Advisory Commission," and the same may be cited
in that manner.
There is hereby established a commission of the Borough of Kutztown.
Said commission shall be an advisory commission and shall remain in
existence until an ordinance terminating its existence is passed by
the Borough Council.
A.
The Commission shall be made up of seven members, who shall be appointed
by the Borough Council. The seven members or commissioners shall consist
of the following: seven Borough residents and/or owners or operators
of businesses located within the Borough or receiving telecommunications
services from Home Net. Beginning with appointments which are to be
effective on or after February 1, 2012, four Commissioners shall be
appointed for terms to expire two years from their appointment and
three Commissioners shall be appointed for terms of one year. Each
appointment or reappointment of a Commissioner occurring after the
seven appointments are made to fill the terms expiring on February
1, 2012, shall be for a period of two years.
B.
The Commission shall annually elect one of its members to serve as
Chairperson and shall elect such other officers and adopt procedural
rules and regulations as it deems appropriate.
C.
The Commission shall adopt bylaws, rules and procedures not inconsistent
with the provisions of this ordinance as may be necessary for the
proper execution of its business.
D.
The Commission shall meet at least monthly. Special meetings may
be called by the Chairperson or a majority of the Commission as needed.
The Borough Council of the Borough of Kutztown may appoint one
of its members or their designee to serve as the Borough Council's
liaison to the Borough of Kutztown Telecommunications Advisory Commission.
The Council liaison shall have the ability to engage in the discussion
of the Commission and provide useful input to the Commission. However,
the Council liaison shall not have a vote in the affairs of the Commission
nor shall be/she be eligible for election as an officer of the Commission.
A.
The purpose of the Commission shall be to advise the Borough Council
with regard to the operation and functioning of Home Net, taking into
account the following: the performance of the existing telecommunications
operations of the Borough; emerging telecommunications technology
and the future telecommunications needs and interests of the community.
B.
The Commission's duties shall include the following:
(1)
Review rates and fees of the Borough's telecommunications services
to insure that they remain competitive with the surrounding market.
(2)
Review suggested system improvements and to make recommendations
to the Borough Council regarding future capital improvements.
(3)
Review and offer input to potential expansion of Home Net's
service area.
(4)
Serve as an advisor to the Borough Council with respect to the public,
educational and government access channels and scheduling for the
use of such; encourage the use of the public access channels among
the widest range of institutions, groups and individuals within the
Borough and its service area.
(5)
Provide recommendations and suggestions to the Borough Council on
policies and procedures which may improve the customer service aspects
of the services provided via Home Net.
(6)
Apply for and receive grants and expend funds appropriated for its
use for the purposes set forth in this subsection, provided that no
expense may be incurred by the Commission without the prior approval
of the Borough Council of the Borough of Kutztown.
(7)
Undertake such other tasks related to the Borough's telecommunications
services and fiber optic system as requested or assigned by the Borough
Council.
C.
The Commission shall file an annual report with the Borough Council
which shall contain recommendations concerning the Borough's
telecommunications policies and methods to improve thereon. The report
shall also set forth an outline of the Commission's goals and
objectives for the upcoming year.
