[Ord. 167, 8/8/1989]
The Township of North Strabane finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of the Township. Because of the complex and rapidly changing technology associated with cable television, the Township further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the Township or such persons as the Township shall designate. It is the intent of this Part
4 and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this Part shall be deemed to include this finding as an integral part thereof.
[Ord. 167, 8/8/1989]
This Part shall be known and may be cited as the "North Strabane
Cable Communications Ordinance".
[Ord. 167, 8/8/1989]
For the purposes of this Part the following terms, phrases,
words, and their derivations shall have the meaning given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular
number, words in the singular number include the plural numbers, and
the use of any gender shall be applicable to all genders whenever
the sense requires. The words "shall" and "will" are mandatory and
the word "may" is permissive. Words not defined shall be given their
common and ordinary meaning.
CABLE COMMUNICATIONS SYSTEM, SYSTEM, CABLE TELEVISION SYSTEM,
CABLE SYSTEM, CATV SYSTEM, COMMUNITY ANTENNA TV SYSTEM
A system of antennae, cables, wires, lines, towers, waveguides,
or other conductors, converters, amplifiers, headend equipment, master
controls, earth stations, equipment and facilities designed and constructed
for the purpose of producing, receiving, transmitting, amplifying
and distributing audio, video and other forms of electronic or electrical
signals within the Township.
FCC
The Federal Communications Commission.
FRANCHISE
The right granted through a contractural agreement between
the Township and a person by which the Township authorizes such person
to erect, construct, reconstruct, operate, dismantle, test, use and
maintain a Cable Communications System in the Township. Any Franchise
awarded by an agreement in accordance herewith shall be authorized
by resolution and shall be a nonexclusive franchise. The term "Franchise"
shall also include any "Franchise Renewal."
FRANCHISE AGREEMENT
An agreement entitled "Franchise Agreement" entered into
between the Township and Grantee which is authorized by resolution
and which is enforceable by the Township and Grantee and which sets
forth the rights and obligations between the Township and Grantee
arising out of the Franchise.
GRANTEE
The party or parties granted a Franchise pursuant to this
Part.
FRANCHISE FEE
Any tax, fee or assessment of any kind imposed by the Township
on a Grantee solely because of its status as such. The term "Franchise
Fee" does not include:
(a)
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee or assessment
which is unduly discriminatory against Grantee or cable subscribers);
(b)
Capital costs which are required by the franchise to be incurred
by Grantee for public, educational or governmental access facilities;
(c)
Requirements or charges incidental to the awarding or enforcing
of the Franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages;
(d)
Any fee imposed under Title 17, United States Code.
GROSS REVENUES
All cash, credits, property of any kind or nature or other
consideration derived directly or indirectly by a Grantee, its affiliates,
subsidiaries, parents, and any other person or entity in which Grantee
has a financial interest or which has a financial interest in Grantee,
arising from or attributable to operation of the Cable Television
System within the Township, including but not limited to:
(a)
Revenue from all charges for services provided to subscribers
of entertainment and non-entertainment services (including leased
access fee) within the Town of North Strabane;
(b)
Revenue from all charges for the insertion of commercial advertisements
upon the Cable Television System;
(c)
Revenue from all charges for the leased use of studios;
(d)
Revenue from all charges for the installation, connection and
reinstatement of equipment necessary for the utilization of the Cable
Television System and the provision of subscriber and other services;
(e)
The sale, exchange or use or cablecast of any programming developed
for community use or institutional users;
(f)
Commissions received by Grantee based upon sales of services
or merchandise on programming services carried on the System.
Items (b), (c), (e), and (f) shall be pro-rated based upon the
total number of subscribers served by the Cable Television System
and those subscribers residing in North Strabane.
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Gross Revenues shall include the value at retail price levels
of any goods, service or other renumeration in non-monetary form (including
but not limited to stock options, complementary sports and other event
tickets) received by the Grantee or others described above for performance
by a Grantee or others described above of any advertising or other
service in connection with the Cable Television System.
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LEASED ACCESS
The use on a fee-for-service basis of the Cable Television System by business enterprises (whether profit, nonprofit or governmental) to render services to the citizens of the Township and shall include without limitation all use pursuant to Section
612 of the Cable Communications Policy Act of 1984 (47 USC § 521 et seq.).
PERSON
Any individual, corporation, partnership, association, joint
venture or organization of any kind.
SUBSCRIBER
Any person who legally receives any one or more of the services
provided by the Cable Communications System.
STREET
The surface of and the space above and below any public street,
road, highway, freeway, easement, lane, path, alley, court, sidewalk,
parkway, or driveway now or hereafter existing as such within the
Township.
TOWNSHIP
The Township of North Strabane, and all the territory within
its present and future boundaries and including any area over which
the Township exercises jurisdiction. The Board of Supervisors is the
governing authority of the Township.
[Ord. 167, 8/8/1989]
Nothing in this Part or in any ordinance of Franchise Agreement
awarding a Franchise in accordance herewith shall be construed as
an abrogation by the Township of any of its police powers.
[Ord. 167, 8/8/1989]
Applications for a Franchise shall include at a minimum:
1. A clear description of the identity of the applicant, including but
not limited to the name of the applicant, the address of the applicant,
the nature of the business entity, and evidence of the compliance
of the business entity with all applicable laws.
2. Evidence that the applicant has applied (including the payment of
all applicable fees) to the Township for all applicable construction
permits.
3. Evidence that all aspects of the applicant's Cable Television System
comply with applicable zoning laws of the Township.
4. A map or maps of a scale of not less than one inch equaling 100 feet
showing the precise geographic area for which applicant seeks a Franchise
("Franchise Area") and, also, for any applicant seeking Franchise
Renewal, the area served by the applicant at the time of the application
for renewal.
5. Evidence that applicant has applied (including the payment of all
applicable fees) to the Township for building and electrical code
review and approval of the plans and construction of the entire Cable
Television System within the Franchise Area.
6. Evidence of financial responsibility in the form of a letter of credit and construction performance bond, conforming to §
421 and §
422 of this Part, respectively.
7. A non-refundable application fee as may be established by the Township
to cover the costs of review, issuance and enforcement of Franchises
issued pursuant to this Part.
8. A schedule of construction, as established by the applicant and reflected upon the map(s) provided pursuant to Subsection
(4) of this Section, showing by a logical geographic progression which streets within the Franchise Area shall be constructed by the applicant within each calendar quarter during the period of construction.
9. Detailed plans and specifications for the Cable Television System
which is proposed by the applicant.
[Ord. 167, 8/8/1989]
If during the term of a Franchise the Township, a public utility
or authority, a public water company or authority, a public sanitation
company or authority, a public drainage authority or any other similar
special public entity or authority elects to alter, repair, realign,
abandon, improve, vacate, reroute or change the grade of any street
or to replace, repair, install, maintain, or otherwise alter any above
ground or underground cable, wire conduit, pipe, line, pole, wireholding
structure, structure, or other facility utilized for the provision
of utility or other services or transportation of drainage, sewage
or other liquids, the Grantee has, except as otherwise hereinafter
provided, at its sole expense, remove or relocate as necessary its
poles, wires, cable, underground conduits, manholes and any other
facilities which it has installed. The entities may decide among themselves
who is to bear the cost of relocation; provided, that the Township
shall not be liable to a Grantee for such costs. Regardless of who
bears the costs, a Grantee shall take action to remove or relocate
at such time or times as are directed by the entity of company undertaking
the work.
[Ord. 167, 8/8/1989]
Each Grantee shall, upon request by any person holding a building
moving permit, franchise or other approval issued by any governmental
entity having jurisdiction over the same, temporarily remove, raise
or lower its wire to permit the movement of buildings. The expense
of such removal, raising or lowering shall be paid by the person requesting
same, and a Grantee shall be authorized to require such payment in
advance. A Grantee shall be given not less than 48 hours oral or written
notice to arrange for such temporary wire changes.
[Ord. 167, 8/8/1989]
Any Cable Television System Franchise awarded pursuant to the
provisions of this Part shall provide equal and uniform cable television
service to all persons requesting service in the Franchise Area, except
as provided otherwise in the Franchise Agreement.
[Ord. 167, 8/8/1989]
The applicant shall define a Franchise Area whose contour, so
far as is possible, shall follow streets. Within the perimeter of
the contour, no dwelling units shall be excluded from service provided
to the Franchise Area defined by the applicant.
[Ord. 167, 8/8/1989]
Each Cable Television System shall, at minimum:
1. Relay to subscriber terminals those broadcast signals required by
Federal law, rules and regulations.
2. Distribute in color all signals which it receives in color.
3. Distribute in stereo all signals which are capable of being received
by Grantee in stereo.
4. Make available upon request at reasonable cost by any subscribers
receiving channels showing premium services and pay per view events,
a lockout device which prevents the unauthorized viewing of such channels.
5. Make available to subscribers at reasonable cost, upon request, an
RF switch (an A-B switch) permitting conversion from cable to antenna
reception.
6. Provide state of the art service and capacity as is reasonable in
light of both cost and services provided by neighboring systems of
comparable size.
[Ord. 167, 8/8/1989]
Each Cable Television System shall include equipment capable
of providing standby power for headend, transportation and truck amplifiers
for a minimum of three hours and all repair work shall be performed
in a manner to minimize interruption of service. The system shall
incorporate safeguards necessary to prevent injury to linemen resulting
from a standby generator powering a "dead" utility line.
[Ord. 167, 8/8/1989]
Each Cable Television System shall include an "Emergency Alert
Capability" which will permit the Township, in times of emergency
and in cooperation with other communities served by the Cable Television
System, to override by remote control alternatively the audio and
video of all channels simultaneously.
[Ord. 167, 8/8/1989]
Each Grantee shall, at its sole expense, fully indemnify, defend
and hold harmless the Township, and their capacity as such, the officers,
agents and employees thereof, from and against any and all claims,
suits, actions, liability and judgments for damages or otherwise:
1. For actual or alleged injury to persons or property, including loss
of use of property due to an occurrence, whether or not such property
is physically damaged or destroyed, in any way arising out of or through
the acts or omissions of the Grantee or its officers, agents, employees,
or contractors or to which the Grantee's or its officers, agents,
employees or contractors acts or omissions in any way contribute.
2. Arising out of or alleged to arise out of any claim for damages for
invasion of the right of privacy, defamation of any person, firm or
corporation, or the violation or infringement of any copyright, trademark,
trade name, service mark or patent, or of any other right of any person,
firm or corporation.
3. Arising out of or alleged to arise out of Grantee's failure to comply
with the provisions of any statute, regulation or ordinance of the
United States, Commonwealth of Pennsylvania or any local agency applicable
to the Grantee in its business.
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Nothing herein shall be deemed to prevent the parties indemnified
and held harmless from participating in the defense of any litigation
by their own counsel at the Grantee's sole expense. Such participation
shall not under any circumstances relieve the Grantee from its duty
of defense against liability or of paying any judgment entered against
such party.
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[Ord. 167, 8/8/1989]
No provision of this Part shall be deemed to bar the right of
the Township to seek or obtain judicial relief from a violation of
any provision of the Franchise or any rule, regulation, requirement
or directive promulgated thereunder. Neither the existence of other
remedies identified in this Part not the right of the Township to
recover monetary damages (except where liquidated damages are otherwise
prescribed) for such violation the Grantee, or judicial enforcement
of the Grantee's obligations by means of specific performance, injunction
relief or mandate, or any other judicial remedy at law or in equity.
[Ord. 167, 8/8/1989]
A Grantee shall not be relieved of any obligation to comply
with any of the provisions of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder by reason of any failure
of the Township or its officers, agents or employees to enforce prompt
compliance.
[Ord. 167, 8/8/1989]
On request, the Grantee shall provide to the Township copies
of all petitions, applications, communications and reports submitted
by the Grantee to the FCC or any other Federal or State regulatory
commission or agency having jurisdiction in respect to any matters
affecting construction or operation of a Cable Television System or
services provided through such a system. Copies of responses or any
other communications from the regulatory agencies to a Grantee likewise
shall be provided on request to the Township.
[Ord. 167, 8/8/1989]
The Township Board of Supervisors expressly reserves the right
to approve the rates which the Grantee charges its subscribers for
basic cable service to the extent the Board of Supervisors is permitted
to do so by law. Such approval shall not be unreasonably withheld.
"Basic cable service" shall mean any tier of service which includes
the retransmission of local broadcast signals. The Grantee shall not
deny, delay, interrupt or terminate Cable Communications Services
to subscribers or users because the Board of Supervisors denies a
request for a rate increase, provided, however, that nothing herein
shall be construed to limit the Grantee's right to seek judicial review
of such action. Grantee shall notify the Township of any proposed
rate increase at least 60 days in advance of the effective date of
said increase. The increase shall take place automatically unless
denied by the Board of Supervisors at a public meeting, after public
hearing, during the sixty-day period.
[Ord. 167, 8/8/1989]
For the use of the streets and for the purposes of providing revenue with which to defray the costs of regulation arising out of the granting of Franchises under this Part and each Grantee shall pay Franchise Fees in the amount prescribe by §
430.
[Ord. 167, 8/8/1989]
Any Franchise Fees which remain unpaid after the dates specified in §
430 above shall be delinquent and shall thereafter accrue interest at the rate of 18% per annum.
[Ord. 167, 8/8/1989]
Not less than annually, the Grantee shall provide the Township with an unqualified certification of an independent certified public accountant certifying the accuracy of the Franchise Fee payments made during the preceding 12 months pursuant to §
430. Said certification shall be prepared in accordance with generally accepted accounting standards as established by the Financial Accounting Standards Board (FASB).
[Ord. 167, 8/8/1989]
During the term of each Franchise, the Township may, not more frequently than once each year, conduct an audit of the books, records and accounts of the Grantee for the purpose of determining whether the Grantee has paid Franchise Fees in the amounts prescribed by §
430. The audit may be conducted by an independent certified public accounting firm retained by the Township, and shall be conducted at the sole expense of the Township. The party conducting the audit shall prepare a written report containing its findings, and the report shall be filed with the Township, and mailed to the Township and Grantee.