Township of East Brandywine, PA Cable Television

Upon application duly made, the Township of East Brandywine may grant the nonexclusive right to erect, maintain and operate television transmission and distribution facilities and additions thereto in, under, over, along, across and upon the streets, lanes, avenues, sidewalks, alleys and other public places in the Township of East Brandywine (hereinafter referred to as "the Township") for the purposes of transmission and distribution of audio and visual impulses and television energy in accordance with the laws and regulations of the United States of America, of the State of Pennsylvania and of the Township. The Township may adopt a form for the making of application pursuant hereto and in the event that such a form is adopted, then application shall be made only on such form.

§ 120-3 Definitions.

Whenever used in this chapter, the following words shall have the meanings ascribed herein:

TELEVISION

A system for the transmission of off-the-air received audio and/or visual signals and images by means of electrical impulses, including microwave, satellite to earth and similar means.

§ 120-4 Use of existing poles; underground facilities.

To the extent possible, all facilities erected, maintained or operated pursuant to this chapter shall be attached to poles already in existence in the Township. To the extent that existing poles are insufficient for the purposes hereof, or if anyone being granted the right hereunder (hereinafter referred to as "licensee") is unable to negotiate agreements satisfactory to licensee providing for use of existing poles, licensee shall have the right to erect and maintain its own poles as necessary for the construction and maintenance of its television distribution system subject to the approval of the location of such poles by the Township Engineer. Licensee shall, upon request, reimburse the Township for all reasonable engineering fees and costs incurred in connection with such approval. The approval of the Township Engineer shall not be unreasonably withheld. All residential areas of the Township which are now or in the future served by underground electrical utilities shall be served only by underground transmission and distribution facilities. Nothing herein shall be construed to constitute the exercise of the power of eminent domain by the Township or permit any licensee to exercise such power acting on behalf of the Township.

Licensee 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 72 hours' prior notice has been given to the Township and the Township has failed to object to such attachment. Township shall not unreasonably object to any such attachment.

Licensee shall pay to Township an annual fee for each pole utilized by licensee owned by the Township, which fee shall not be less than $1.50 per pole. If the licensee shall negotiate a contract with the Philadelphia Electric Company or the Bell Telephone Company of Pennsylvania, or like public utility, for the use of their poles for a fee per pole per year, then the annual fee payable hereunder shall be the same as the fee payable pursuant to such negotiated contracts, but not less than the amount aforesaid.

In the event that licensee negotiates a contract fee per pole per year with such public utility, providing for different fees to each of those entitles, the annual fee per pole payable to the Township for each pole owned by the Township and utilized by licensee, shall be the higher of the two negotiated contract fees, but not less than the minimum fee as set forth above.

In the event licensee does not negotiate an agreement for the use of any poles of such public utility, the fee payable by the licensee to the Township shall be the minimum as aforesaid, an annual fee of $1.50 for each pole owned by the Township and utilized by the licensee. In the event that a licensee shall use a pole for less than a full year, then the charge for such pole shall be prorated from the day when the use of the pole began.

Township hereby states its desire that all holders of public licenses and franchises within the corporate limits of the Township shall cooperate with every licensee 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.

Each licensee shall extend to the Township, free of any expense, joint use of any and all poles owned by any licensee for any proper municipal purpose insofar as may be accomplished without interference with the use and enjoyment of the licensee's own wires and fixtures. Township shall hold each licensee harmless from 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 licensee.

Insofar as it is within the power of the Township to grant the following right, the approval of any application made hereunder shall grant to licensee whose application is approved, the authority to trim trees upon and overhanging all streets, alleys, easements, sidewalks and other places within the Township, but only to the extent necessary to prevent the branches of such trees from coming into contact with the facilities of the licensee.

Each licensee whose application is approved pursuant to this chapter shall construct an all-bands system capable of providing a minimum of 30 channels of television reception and FM radio to the licensee's subscribers and installation and maintenance of equipment shall be such that standard color signals shall be transmitted to subscribers.

§ 120-5 Use of streets and sidewalks; maintenance of poles; channels for public use.

All structures, lines and equipment erected by any licensee within the Township shall be located so as not to interfere with the use of alleys, streets, easements and other public ways and places or within the rights and reasonable convenience of property owners, and each licensee shall comply with all ordinances of the Township now or hereafter in force.

In case of any disturbance of pavement, sidewalk, driveway or other surface, licensee shall, at its own expense, and in a manner approved by Township, remove, replace and restore all payment, sidewalk, driveway or surface so disturbed to as good condition as before such disturbance.

In the event Township shall at any time lawfully elect to alter or change any street, alley or other public way or easement requiring the relocation of any of the facilities of any licensee, licensee, upon reasonable notice, shall remove and relocate any such facilities at licensee's own expense.

Whenever it shall be necessary for any licensee to raise or lower its lines to permit the moving of any machinery or equipment or any building or other structure, the licensee shall accomplish the same upon the request of any person lawfully entitled to move such machinery or equipment or building or other structure. The actual expense of raising or lowering or temporarily removing the licensee's lines shall be paid by the person requesting the same and the licensee shall have the right to require payment in advance of the reasonably estimated cost of such raising, lowering or temporary removal; provided, however, that if the raising, lowering or temporary removal shall be necessary for Township purposes and shall be done at the request of the Township, then such raising, lowering or temporary removal shall be accomplished by the licensee at no charge to the Township.

All poles, lines, structures and other facilities of the licensee in, on, over or under the streets, sidewalks, alleys, easements and other public grounds or places within the Township shall be maintained at all times by the licensee in a safe and appropriate condition.

Each licensee shall furnish, free of charge, at least one service distribution connection to each school, fire station, police station, Township administrative building and public library located within the Township and reasonably accessible to lessee's transmission routes.

Lessee shall make not less than one channel available for public use and for use by persons and organizations in the Township and within the school district of which the Township is a part. In the event that such public use increases, lessee shall use its best efforts to make additional channels available to fulfill this need.

§ 120-6 Service interruptions; complaints.

Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, installations or adjustments, the licensee shall do so at such time as will cause the least amount of inconvenience to its customers, consistent with the needs and requirements of licensee.

Each licensee shall maintain telephone service, which shall be toll free to the caller for calls originating from within East Brandywine Township, for the purpose of receiving inquiries and complaints from the licensee's customers. Each licensee shall provide sufficient maintenance personnel to respond to routine service calls within 24 hours, Mondays through Fridays, except in the case of major outages due to storms, civil unrest or acts of God. Each licensee shall maintain records of complaints and the resolution of such complaints, which records shall be available and provided on request to the Township Supervisors of East Brandywine Township.

§ 120-7 Indemnification of Township.

Each licensee shall indemnify, defend and save and hold the Township harmless from any and all loss sustained by the Township by reason of any suit, judgment, execution, claim or demand whatsoever resulting from any action on the part of the licensee in the construction, operation or maintenance of its television system. Each licensee shall carry property damage and public liability insurance with an insurance company qualified to do business in the Commonwealth of Pennsylvania. Each licensee shall carry at least the following minimum amounts of insurance: liability owing to damage to property, $100,000 per accident; against liability owing to injury to or death of persons, $500,000 per person and $1,000,000 per accident; provided that the Township may require increases in such minimum amounts from time to time to provide for inflation. Each licensee shall also carry workmen's compensation insurance and such other insurance as may be required by the laws of the Commonwealth of Pennsylvania in such amounts as may be required. All insurance policies shall contain an appropriate provision which waives the right of subrogation or contribution against or from the Township, its agents, servants or employees, on behalf of licensee or its insurer arising from activities of licensee within the Township. Such provisions shall not constitute a waiver for the negligent acts of the Township, its agents, servants or employees. The Township shall notify a licensee within 30 days after the presentation of any claim or demand, either by suit or otherwise, made against the Township on account of any activity as aforesaid on the part of any licensee, provided that the failure of the Township to notify licensee shall not relieve the licensee of its obligations hereunder unless licensee is actually prejudiced as a result of the failure of the Township to notify it as to any claim or demand.

§ 120-8 Service rates.

Licensee shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service, but licensee shall not as to rate, charges, service, facilities, rules and regulations, or any other respect, make or grant any preference or advantage to any customer or subject any customer to any prejudice or disadvantage, but nothing herein contained shall be deemed to prohibit the establishment of a graduate scale of charges and classified rate schedules, provided that the classification of customers shall be reasonable and any customer coming within a particular classification shall be entitled to the same rates as any other customer coming within that classification. Rates shall be the same for all classifications of customers served by licensee from similar facilities. The rates charged to individual residential units and/or other customers shall not vary because of geographic position within the Township. Nothing herein contained shall prevent any licensee from providing a preferential rate or free service to the Township or for any public purpose. Licensee shall provide the Township with a copy of its rate schedule and shall update the same as it is changed.

§ 120-9 Duration of rights.

Rights granted to any licensee hereunder shall take effect and be in full force from and after the date upon which each application is approved by the Township. The rights granted hereunder shall continue in full force and effect for an initial period of not less than 25 years from the date of application approval and each licensee whose application is approved shall have the right to renew the rights granted hereunder for an additional term of 15 years under the terms hereof from and after the expiration date of the initial twenty-five-year period. The right to renew for the additional period shall be exercised by the licensee in the following manner only: by giving the Township notice, in writing, of the licensee's election to exercise the option, which notice shall be given not less than six months, nor more than two years, prior to the expiration of the initial term granted hereunder, such notice to be either personally served or mailed, certified or registered mail, return receipt requested, to the Township at the Township's administrative offices.

§ 120-10 Violations.

In the event that licensee shall violate any of the provisions of this chapter or the provisions of any license granted hereunder, the Township shall give written notice of the violation to licensee at its last known address. If such violation continues for a period of 30 days from the date of said notice, the Township may revoke and cancel the license and rights granted pursuant to this chapter. In the event of forfeiture or annulment of the rights granted hereunder, the licensee may dispose of its property within the Township in any lawful manner, repairing any damage done by such removal.

The licensee, the Township or other party in interest may proceed in law or equity before a court of appropriate jurisdiction to enforce the provisions of this chapter and the rights, privileges, duties and obligations arising hereunder.

§ 120-11 Service time frames.

In order to render the service contemplated by this chapter, each licensee may require service from a point-to-point microwave service common carrier licensed by the Federal Communications Commission. Within 120 days after approval of its application hereunder, licensee shall submit an order for service with a qualified carrier. If the licensee shall not, within six months from the date the qualified carrier completes construction of the facilities necessary to serve licensee, have commenced the installation of its television system, or in the event the licensee does not place an order for service with a qualified carrier, as required above, the approval of the licensee's application may be revoked and canceled by the Township. Unless adequate service is already being provided by another cable television company, licensee, within two years from the date of approval of its application, shall provide television distribution service to subscribers within the Township and shall make television distribution services available to all residences within the Township, situate along public or private roads having a density of 35 residences per lineal mile of such roads. In the case of residences served by a private road, a proper right-of-way access must be available, at no cost to licensee, for the installation of the distribution system. The foregoing requirements in the sole discretion of the Township Supervisors may be modified and amended in such manner as may be in the public interest.

§ 120-12 Franchise fees.

Each licensee shall pay to the Township an amount which, when added to the amount of all taxes, licenses, fees or impositions levied or imposed by the Township upon each licensee or upon its property or operations for the preceding calendar year, will equal 3% of the gross service revenues received by the licensee from its basic television distribution business and 3% of the net revenues from its pay TV service within the Township. "Gross service revenues" as used herein shall mean the gross annual amount of regular service charges. Payments required hereunder shall be due within 45 days after the end of each calendar year, except that licensee shall pay to the Township within 30 days of the date of approval of its application for license hereunder the sum of $5,000, which shall be credited against the fees and charges as provided for herein.

Each licensee shall keep records of account showing the date and amount of all payments received. The duly authorized agent of the Township shall have the right at its expense to inspect and audit the licensee's records of gross revenues of any licensee at any reasonable time.

Nothing herein contained shall be construed as requiring any licensee to pay to the Township any portion of the revenue derived from the sale of its service by the licensee to customers residing outside the corporate limits of the Township; provided, however, that upon annexation to the Township of any territory not now within the corporate limits of the Township, the portion of the licensee's facilities that may be located within such annexed territory and upon the streets, alleys and public grounds thereof, shall thereafter be subject to all of the terms of this chapter.

§ 120-13 Service and business restrictions.

No licensee hereunder shall engage in the business of sale or repair of television receivers owned by its subscribers, nor will any licensee be responsible for the operating condition of said receiver. Any service furnished by any licensee to a subscriber pursuant to this chapter shall terminate at the point of connection of the licensee's facilities to the subscriber's receiver.

§ 120-14 Nonexclusivity of rights.

Nothing herein contained shall be deemed to render any right granted hereunder to be exclusive to any licensee.

§ 120-15 Transfer of rights.

The rights granted hereunder may not be assigned or transferred by any licensee, except with the approval of the Township first had and obtained in writing, which approval may be withheld only for good cause shown, but as a condition of granting approval of transfer or assignment, the Township may require the proposed transferee or assignee to submit reasonable information concerning itself, to submit the same information as would be required in connection with making a new application hereunder, and to execute an appropriate instrument signifying the acceptance by the transferee or assignee of all of the terms and conditions of this chapter and agreeing to perform the same.

§ 120-16 Security guaranty.

The Township may require that prior to the erecting, maintaining or operating any facilities provided for hereunder, that a licensee provide security for the payment of any damages done to public or private property or facilities. In addition, the Township may require the licensee to provide security for the payment of any damages done to public or private property or facilities. In addition, the Township may require the licensee to provide security to guarantee the installation of its facilities and the providing of service in accordance with its application and within the area of the Township and time provided in § 120-11 hereof. Such security may be provided by the deposit of funds in escrow, the assignment of an approved letter of credit or bond with approved corporate surety in an amount not to exceed $100,000.