[HISTORY: Adopted by the Board of Supervisors of the Township
of West Bradford as indicated in article histories. Amendments noted
where applicable.]
[Adopted 7-14-1992 by Ord. No. 1992-01]
This article shall be known and may be cited as "The Township
of West Bradford Community Antenna Television Ordinance."
When used in this article, unless the context otherwise requires,
the following terms and their derivatives shall have the meanings
herein given (and when not inconsistent with the context, words used
in the present tense include the future tense, words in the plural
number include the singular, and words in the singular number include
the plural):
An entity which owns or controls, is owned or controlled
by, or is under common ownership with the 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, in the absence of at least three must-carry signals,
any unaltered broadcast television signals and public, educational
and governmental channels, as required by the franchising authority
pursuant to Title VI of the Cable Communications Policy 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 or instrumentality, and collected
by the grantee.
Board of Supervisors of the Township of West Bradford.
That body of federal law which was enacted on October 30,
1984, and having an effective date of December 29, 1984, or as hereafter
amended.
A system of antennas, cables, wires, lines, towers, waveguides
or other conductors, converters, equipment or facilities designed
and constructed for the purpose of producing, receiving, transmitting,
amplifying and distributing audio, video and other forms of electronic
or electrical 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
authorized construction and operation of the cable system for the
purpose of offering cable service or other service to subscribers.
That area within the corporation limits of the Township as
now or hereafter constituted.
The grantee (franchise holder) of rights granted by the Township
under this article. 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 HBO, Cinemax, Showtime, Disney and
similar programming. Such phrase shall not include pay-per-view (PPV)
revenues or revenues received from any advertising carried on the
cable system, nor shall such phrase 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.
Special one-time events, made available from time to time,
to only those cable television subscribers who prearrange to pay a
special one-time fee for such individual event.
An individual, partnership, association, joint-stock company,
trust corporation, or other legal entity.
All property owned, installed or used by the grantee in the
conduct of a cable television system in the Township.
The surface of and the space above and below and within the
right-of-way of any public street, highway, freeway, bridge, land
path, alley, court, boulevard, sidewalk, parkway, way, land 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 or other services provided by
the grantee and for which a separate charge is made by the 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 services therefrom with the grantee's expressed
permission.
The Township of West Bradford, also called the "franchising
authority."
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
A.
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 to erect, install,
construct, repair, replace, reconstruct, maintain and retain in, on,
over, under, upon, across and along any public way, and all extensions
thereof and addition thereto in the franchise area, such 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.
B.
The Township may promulgate a form for the making of any such application,
and in the event that such a form is promulgated, then application
shall be made only on such form. Any right granted pursuant to this
article 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 not 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 to adjust
current rates according to 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. The rights granted hereunder shall continue
in full force and effect for an initial period of not less than 15
years from the date of application approval, and each grantee whose
application is approved shall have the right to renew the rights granted
hereunder for an additional term of five years and thereafter in additional
five-year increments from and after the expiration date of any initial
or renewal period. The right to renew for each additional renewal
period shall be exercised by the grantee by giving written notice
to the Township of the grantee's election to exercise its renewal
option, which notice shall be given not less than six months nor 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 administration office.
B.
Prior to the issuance or renewal of any franchise to operate a cable
television system within the Township, the Board of Supervisors shall
conduct a public hearing, to which the grantee or proposed grantee
shall be a necessary party, 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 any franchise, and the grantee or the 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, the article and all other
applicable law;
(2)
Whether the quality of the grantee's service has or will be
reasonable in light of community needs;
(3)
Whether the grantee has the financial, legal and technical ability
to provide the services, facilities and equipment proposed; and
(4)
Whether the grantee's proposal is reasonable to meet the current
and future cable-related community needs and interests, including
the cost of meeting them.
C.
Any proceedings undertaken by the Township that related to issuance
or renewal of any franchise shall be governed by and comply with the
provisions of Section 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 superseded by the provisions of
any subsequent provisions of federal or commonwealth law, which shall
then apply to any such proceeding.
D.
In addition to the procedures set forth in Section 626(a), the Township shall notify the existing or proposed grantee of its preliminary assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of the grantee under the then current franchise agreement, if any. Such notification shall be made prior to the time that the four-month period referred to in Subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary herein, at any time during the term of any then current franchise agreement under which the grantee is operating, subject to affording the public appropriate notice and opportunity to comment, the Township in its discretion may agree to undertake and finalize negotiations with the grantee regarding renewal of the then current franchise agreement, and the Township may grant a renewal thereof in its discretion.
A.
To the extent possible, all franchise facilities shall be attached
to existing poles. To the extent 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, the grantee 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 prior written approval
of the location of such poles by the Township Engineer; provided,
however, that the approval of the Township Engineer shall not be granted
for the installation of such poles when, in his opinion, the installation
of such new transmission facilities underground is feasible or otherwise
necessary, considering engineering criteria only.
B.
The 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 10 days' prior written notice has been given
by the grantee to and received by the Township, and the Township has
failed to object to such attachment within that time.
C.
The grantee shall pay to the Township an annual fee for each pole
utilized by the 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 Company or the Bell Telephone Company
of Pennsylvania or other 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. If such utility fees are different,
the annual fee per pole payable to the Township shall be the higher
of the negotiated utility contract fees, but not less than the aforesaid
minimum fee.
D.
All holders of public licenses and franchises within the corporate
limits of the Township shall 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 any grantee for any proper municipal
purpose insofar as may be accomplished without interference with the
use and enjoyment of the grantee's own wires and fixtures. The
Township shall hold each grantee 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 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 Engineer, who shall determine pole
setback from the cartway and all other matters related to such location
and installation. The cable television system shall be constructed
and operated in compliance with applicable governmental construction
and electrical codes.
B.
In case of disturbance of any street or paved area, the grantee shall,
at its expense and in a manner approved by the Township Engineer,
replace and restore such street or paved area in as good condition
as theretofore.
C.
The grantee shall, at its 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 the grantee shall,
in all cases, have the right of abandonment of its property, subject
to Township ordinances.
D.
Should the Township seek to alter, improve, redevelop or refurbish
any street(s) or area presently served by the existing cable television
system, the Township shall notify the grantee of such plans. This
notice shall be issued concurrent with notification of public utility
companies, and the grantee shall be invited to all preconstruction
conferences.
E.
Should the Township make application to any public agency or other
funding source which provides monetary reimbursement for relocation
or replacement of existing transmission pipes, power lines or communications
facilities, etc., such application shall include a request made on
behalf of the grantee to cover costs of relocation or replacement
of cable television system. Should said reimbursement request to fully
compensate the grantee be denied, and should the Township and the
grantee be unable to agree on an acceptable method and amount of reimbursement,
then the grantee shall be released of any obligation to provide cable
service to the affected area. The grantee and the Township may, by
mutual agreement, arrange to continue to serve the affected area and
achieve appropriate reimbursement by deducting a negotiated, fixed
amount from the franchise fee paid to the Township. The fixed amount
shall be specified and described in an itemized statement of charges
which shall be submitted by the grantee to the Township for approval.
The Township shall not expend funds as prepayment for relocation and
shall only be required to expend actual, available Township funds
if, in the Township's discretion, total reimbursement, mutually
agreed to, cannot be accomplished through quarterly deductions from
the franchise fee due the Township.
F.
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 other 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 the grantee shall have the right
to require payment in advance of the reasonably estimated costs 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 changes.
G.
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 Engineer, the grantee shall have
the authority, at its expense, to trim trees overhanging any streets
in the franchise area so as to prevent branches from causing damage
to 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.
H.
Subject to any applicable commonwealth or federal regulations or
tariffs, the Township shall have the right 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 interfere with the use by the grantee.
(2)
The Township holds the grantee harmless against and from all claims,
demands, causes of actions, suits, actions, proceedings, damages,
costs or liabilities of every kind and nature whatsoever arising out
of such use of said poles and conduits.
(3)
This hold-harmless provision shall include, but not be limited to,
reasonable attorney's fees and costs, and at the grantee's
sole discretion, the Township may be required either to pay a reasonable
rental fee or otherwise reasonably compensate the grantee for use
of such poles, conduits or equipment; provided, however, that the
grantee agrees that such compensation or charge shall not exceed those
paid by it to public utilities pursuant to the applicable pole attachment
agreement or other authorization relating to the service area.
A.
Each grantee whose application is approved pursuant to this article
shall construct an all-bands 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.
A.
The grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries
or nuisances to the public. All such work shall be performed in substantial
compliance with applicable FCC or other federal, commonwealth and
local regulations.
B.
The 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 suitable 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 that, 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 from at least eight
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 the grantee's
cable required for service located within the public way or easement
and shall not include length of necessary drop cable to the 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 costs involved
in unusual circumstances, including, without limitation, instances
when the distance from distribution cable to connection of service
to subscribers is more than 45 meters (150 cable feet) or when a subscriber
density exists less than the density as specified herein above, service
may be made available on the basis of costs of materials, labor and
easements 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.
The grantee will, with due diligence and in a businesslike manner,
seek to finalize satisfactory cable television service agreements
with developers who do future construction within the Township. However,
absent such agreement(s), the grantee shall have no obligation to
serve such areas. Circumstances shall be timely reported to the Township.
(1)
In addition, the grantee may provide plans and specifications to
the developer in accordance with any such agreement between the grantee
and the developer, but such plans and specifications, if agreed to
by the grantee and the developer, must then be submitted to the Township
which shall have the right of review, and Township approval of the
plans and specifications shall be obtained before installation. Unreasonable
delay in Township approval or untimely Township approval caused by
Township failure or inability to act shall also free the grantee of
any obligation to provide service. Timeliness is a response time of
60 days after receipt by Township.
(2)
In those areas of the franchise area where all of the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services 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 the 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 communications and electric services
are both aerial and underground, the grantee shall have the sole discretion
to construct, operate and maintain all of its transmission and distribution
facilities, or any part thereof, aerially or underground. Nothing
contained in this section shall require the 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 supplies, 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 the respective public utilities providing telephone
communications and electric services are placed underground after
the effective date of the agreement, the grantee shall only be required
to construct, operate and maintain all of its transmission and distribution
facilities underground (excepting vaults) if it is given reasonable
notice and access to the public utilities' facilities at the
time that 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 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 article and applicable commonwealth or
federal laws. Except in emergency circumstances, such tests may be
undertaken only after giving the grantee reasonable notice thereof,
not to be less than five business days, and providing a representative
of the grantee an opportunity to be present during such tests. In
the event the 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 the aggregate, and that the results
thereof shall be made available to the grantee upon the grantee's
request.
A.
Each grantee shall, at all times, be subject to the provisions of
this article and regulations adopted by the Township in furtherance
hereof, and the applicable provisions of all laws of the United States
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
purpose of making repairs, installations or adjustments, the grantee
shall do so at such 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 (not required
to be located within the Township) and a local telephone service,
which shall be toll free to the caller for calls originating from
within the Township of West Bradford, for the purpose of receiving
inquires 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 from 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. The grantee shall maintain a written record of all such
calls, which shall be available for inspection by the Township Codes
Enforcement Officer upon 48 hours' prior oral or written request.
The grantee shall maintain on file with the Township Secretary
a schedule setting forth all rates and charges to be made to subscribers
for basic cable television service, including connection and service
charges. Notice of changes in rates and charges shall be filed with
the Township Secretary. The grantee shall submit such notice of rate
changes at least 30 days prior to the effective date of the adjusted
rates. The Township shall, at its option, have the opportunity to
meet with the grantee to discuss rate adjustments, provided such meetings
occur at least 15 days prior to the effective date of such adjustments.
Normal rate adjustments will not occur more frequently than on an
annual basis, with the anniversary date relative to the adjustments
understood to be the beginning and the end of this 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
January, April, July and October of each year, a franchise fee equal
to 5% of the gross subscriber revenue as defined herein received for
cable television operations in the Township for the preceding calendar
quarter, and no other fee, tax, charge or consideration. By April
15 of each year, the grantee shall provide an annual summary report
showing these gross annual subscriber revenues received during the
preceding calendar year, which summary shall be attested to by a certified
public accountant regularly employed by the grantee, and the grantee
shall pay any unpaid franchise fee then due for the preceding year.
B.
Each grantee shall keep records of account showing the date and amount
of all payments received from subscribers. The Township Secretary
or other agent authorized by the Board shall have the right, at the
Township's expense, to inspect and audit the grantee's records
of basic subscriber revenues 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 corporate
limits of the Township; provided, however, that upon annexation to
the Township of any territory not now within its corporate limits
the portion of the grantee's facilities that may be located within
such annexed territory shall thereafter be subject to all of the terms
of this article.
A.
The grantee shall at all times protect and hold the Township harmless
from all claims, actions, suits, liability, judgments, loss, expense
or damages of every kind and description, including investigation
costs, court costs, and reasonable attorney's fees, which may
accrue to or be suffered or claimed by any person or persons arising
out of the negligence or alleged contractual dispute of the grantee
in the ownership, construction, repair, replacement, maintenance and
operations of said cable television system and by reason of any license,
copyright, property right or patent of any article or system used
in the construction or use of said system, provided the Township gives
the grantee prompt notice of any such claims, actions and suits, etc.,
without limitation, in writing. The grantee shall maintain in full
force and effect during the life of any franchise, public liability
and property damage insurance for an amount of at least $500,000 single
limit 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 all such insurance
coverage shall be provided to the Township within 10 business days
of its effective date of coverage.
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 deductible
provisions not to exceed $1,000 for any type of coverage. 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.
The grantee shall not be initially required to obtain or maintain
bonds or other surety as a condition of being awarded the franchise
or continuing its existence. Should a bond and other surety be required
to guarantee compliance with or performance of the article or a franchise
agreement executed hereunder, it shall be only in such amounts and
during such times as there is a reasonable demonstrated need therefor.
The Township agrees that in no event, however, shall it require a
bond or other related surety in an aggregate amount greater than $10,000,
conditioned upon the substantial performance of the material terms,
covenants and conditions of the franchise. In the event that one is
required in the future, the Township agrees to give the 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, proceeding 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 this 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 procedures as may be specified by the Township.
Any such notice shall include the date, time and place of the scheduled
hearing on the proposed action, whether public participation will
be allowed, and the procedures by which such participation may be
obtained. Any grantee who is the holder or proposed holder of a franchise
which is the subject of the notice shall be a necessary party 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 a 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 of the material provisions of this article or in the
event of any breach of the covenants and conditions contained herein
or for breach of the franchise agreement. In considering termination
for just cause initiated by the Township, the following provisions
shall apply:
A.
Notice of violation. In the event that the Township alleges that
the grantee has not complied with the terms of this article or the
franchise agreement, it shall notify the grantee of the exact nature
of the alleged noncompliance.
B.
The grantee's right to cure or respond. The grantee shall have
30 days from receipt of the notice described in this section to: 1)
respond to the Township, contesting the allegation of noncompliance;
or 2) to cure such default or noncompliance or, in the event that,
by the nature of the default, it cannot be cured within a period of
30 days, to specifically describe and initiate reasonable steps to
remedy such default, together with the projected date of completion.
The Township may reject the grantee's proposed remedy and time
for performance in the event the same is not reasonable.
C.
Public hearing. In the event that the 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 conducted
in accordance with the Local Agency Law.[1]
[1]
Editor's Note: See 2 Pa.C.S.A. §§ 551 et seq. and
751 et seq.
D.
Enforcement. Subject to 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 material provisions
of this article, the Township may:
(1)
Foreclose on all or any part of any security provided under this
article, if any, including, without limitation, any bonds or other
surety; provided, however, such foreclosure shall only be in such
a manner and in such amount as the Township reasonably determines
is necessary to remedy the 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; or
(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 material provisions of this article of the franchise
agreement by reason of any failure of the Township to enforce prompt
compliance. The Township's waiver of any 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, acts 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 ways or
other Township property for the purpose of removing therefrom any
or all its 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 of
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 article or specified in the franchise agreement
to another without the Board of Supervisors' prior written approval
following hearing. No sale or transfer of the grantee's assets
used in the performance of the franchise shall be effective until
the vendee, assignee or lessee has filed in 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 the terms and conditions thereof. The
Board of Supervisors approval shall not be unreasonably withheld,
and neither this section nor other sections of this article 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.
B.
If a renewal of the 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 party, any such acquisition or transfer shall be at a fair
market value, determined on the basis of the cable television system
valued as an ongoing concern. If the 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, 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,
the grantee shall be given a reasonable opportunity to effectuate
a transfer of its cable television system to a qualified third party
at fair market value, determined on the basis of the cable television
system valued as an ongoing concern. Until consummation of such transfer,
the grantee shall 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 the grantee is unsuccessful
in procuring a qualified transferee or assignee of its cable television
system which is reasonably acceptable to the Township, the grantee
and Township may avail themselves of any rights they may have pursuant
to federal and commonwealth law. The grantee's continued operation
of its cable television system during the six-month period shall not
be deemed to be a waiver nor an extinguishment of any rights of either
the Township or the grantee.
From and after the effective date of this article, it shall
be unlawful for any person to construct, install or maintain within
any public way in the Township or on 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 material terms,
conditions or provisions of this article or of a franchise agreement
or fail to comply with any lawful provision of any Township ordinance
regulating the use by any person of the public ways, or if any grantee
should violate any other lawful rule or regulation applicable to it,
whether 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 to have forfeited
and annulled all of its rights and privileges granted under this article
and the franchise agreement, and such franchise may be terminated
by the Township.
Any cable television franchise operating within the Township existing on the effective date of this article shall be subject to its provisions. Within 30 days following adoption of this article, the Township shall undertake proceedings pursuant to § 133-5 hereof to determine renewal of any existing franchise, which franchise shall then be subject to all of the terms and conditions of this article. Within 30 days of any such Board-authorized renewal, the Township and the grantee thereof shall enter into a revised cable television franchise agreement complying with the provisions of this article. Failure on the part of any existing franchise holder to comply with the renewal process shall subject it to the termination provisions of § 133-17 hereof.
[Adopted 9-13-1994 by Ord. No. 1994-03]
This article governs the regulation of rates for basic service
and equipment within the Township of West Bradford for any franchisee
which has been notified that: a) the Township has been certified to
regulate its basic service and equipment rates; and b) the Township
has adopted regulations governing regulation of the basic service
and equipment rates. In addition, West Bradford Township may regulate
the rates for cable services and equipment to the extent not prohibited
by law, pursuant to such resolutions, ordinances or regulations as
it may hereafter adopt. The provisions set forth below are intended
to be consistent with all Federal Communications Commission (FCC)
regulations governing the regulation of basic service rates and equipment,
and the Township and all those acting on its behalf will regulate
and interpret its rules so that they are consistent with FCC regulations,
as if those regulations were set forth in full herein; the franchisee
is prohibited from engaging in any activity it is prohibited in engaging
in under FCC rules, as if those rules were set forth in full herein.
For purposes of these provisions, the term "basic service" or "basic
cable service" has the same meaning as the term "basic service" at
47 CFR 76.901, and the term "equipment" refers to all equipment and
services subject to regulation under 47 CFR 76.923.
A.
Initial filings by franchisees.
(1)
Filings: when made. A franchisee that is notified that its basic
service and equipment rates are subject to regulation must file a
submission ("the rate filing") within 30 days of the notification,
justifying its basic service and equipment rates. All basic service
and equipment rates for all customer classifications must be justified.
Once a franchisee has been so notified by the Township that its rates
are subject to regulation, it may not thereafter increase its rates
for basic service or equipment without the prior approval of the Township.
This requirement applies in all cases, including with respect to increases
in rates announced prior to the date the operator was notified its
rates were subject to regulation where the increases were not implemented
prior to the date of notice. A franchise must submit a rate filing
to justify any increase in basic service or equipment rates or any
new basic service or equipment rates or any new basic service or equipment
rate (collectively referred to herein as "rate increases"). An increase
occurs, without limitation, when there is an increase in rates or
a decrease in programming or customer services. Rate filings proposing
and supporting rate increases must be filed for review at least 30
days in advance of the proposed effective date of the increase. This
requirement does not alter or eliminate any other notice requirement.
(2)
Filing: where made. Every rate filing must be submitted to the Board
of Supervisors of West Bradford Township (the "Board"). A rate filing
shall be considered filed for review on the date the required rate
filing and all required copies are received by the Board. Five copies
of each rate filing (including all supporting materials) must be submitted.
If the operator claims any part of the filing is proprietary, it shall
file five additional copies which omit the proprietary information.
(3)
Filings: contents. Subject to FCC regulations governing the burden
of proof, a rate filing submitted by a franchisee must show that the
rates the franchisee proposes to charge for basic service and equipment
are reasonable. Except as inconsistent with FCC rules:
(a)
Every rate filing must clearly state in a covering letter, whether
it justifies existing rates or proposes an increase in rates. The
cover letter must also identify any rate that is derived in whole
or in part based upon cost of service and identify any pages of the
rate filing that contain information that the franchisee claims is
proprietary. It must state whether any part of the proposed increase
is based on an inflation adjustment or an alleged increase in external
costs. The cover letter should also contain a brief narrative description
of any proposed changes in rates or in service.
(b)
The pages of each rate filing must be numbered sequentially.
(c)
The rate filing must contain all applicable FCC forms, and these
forms must be correctly completed.
(d)
If different rates are proposed for basic service for different
classes of customers, the filing must show that the classifications
and the differences in the rate charged are reasonable and consistent
with federal law.
(4)
If the franchisee seeks to support a rate based upon a cost of service,
the Township will establish a rate that provides the franchisee an
opportunity to recover the reasonable costs associated with providing
basic cable service, including a reasonable profit. An expense or
investment is not presumed reasonable merely because the franchisee
has incurred or made it. A franchisee is not entitled to recover monopoly
profits in any form.
B.
Initial Township review.
(1)
After receiving a rate filing, the Board promptly shall publish a
notice that a filing has been received and that, except for those
parts which may be withheld as proprietary, it is available for public
review. The notice shall state that interested parties may comment
on the filing and shall provide interested parties seven days to submit
written comments on the filing to the Board. The written comments
shall be available for public inspection. The franchisee may submit
and file with the Board a response to the public comments.
(2)
Within 30 days of the date of the filing, the Township shall issue a written order, which may be in any lawful form, approving the proposed rate in whole or in part, denying the proposed rate in whole or in part or tolling the proposed rate in whole or in part. If the Township tolls the rate in whole or in part, its written order, at a minimum, shall explain that it requires additional time to review the rate filing and state that the franchisee may cure any deficiency in its filing by submitting a supplementary filing as provided in Subsection C. With respect to existing rates, "tolling" means the rates may remain in effect, subject to refund; with respect to rate changes, "tolling" means the portion of the rate change that is tolled may not go into effect.
C.
Supplementary filings:
(1)
If a proposed rate is tolled in whole or in part, the franchisee shall submit a supplementary filing 20 days from the effective date of the tolling order, containing corrections, if any, to its filing (including any supplement to its cost of service filing) and any response to information filed by interested parties or any additional information necessary to support the proposed rate. Supplementary filings must be filed in accordance with Subsection A(2).
(2)
A supplementary filing also must contain such information as the
Board or the Township directs the franchisee to provide.
(3)
Upon receiving the supplementary filing, the Board promptly shall
publish a notice that a filing has been received and that it is available
for public review (except those parts which may be withheld as proprietary).
The notice shall state that interested parties may comment on the
filing and shall provide interested parties 20 days to submit written
comment on the filing to the Board.
(4)
The public comments shall be made available for public inspection.
The franchisee may submit and file with the Board a response to public
comments.
(5)
The Township shall issue a written order, which may be in any lawful
form, approving the proposed rate in whole or in part, denying the
proposed rate in whole or in part, or allowing the rate to go into
effect in whole or in part, subject to refund. If the Township issues
an order allowing the rates to go into effect, subject to refund,
it shall also direct the franchisee to maintain an accounting in accordance
with 47 CFR 76.933.
A.
Any rate order of the Township shall be issued and effective upon
adoption. Each rate order shall be released to the public and the
franchisee. In any case where the Township approves, denies or tolls
a rate, orders that a rate may go into effect subject to refund, or
orders refunds or establishes rates, a public notice shall be published
stating that the order has been issued and is available for review.
Any such order shall be in writing.
B.
The Board and the Township may take any steps that they are not prohibited
from taking by federal law to protect the public interest as part
of any rate order or by any other means. By way of illustration and
not limitation, the Township may require refunds, set rates, and impose
forfeitures and penalties directly or through its delegated representatives
and enforce refund orders. Any order prescribing a rate shall explain
why the franchisee's proposed rate was unreasonable and why the
prescribed rate is reasonable.
C.
No order approving or setting a rate using the FCC bench marks shall
be interpreted to establish the just and reasonable rate to subscribers.
Every such rate approved or established shall be subject to further
reduction and refund to the extent permitted under applicable laws
and regulations, as the same may be amended from time to time. By
way of illustration and not limitation, should the FCC reduce the
bench marks, the Township shall have the right to reduce a franchisee's
rates and to require the franchisee to refund any amounts collected
above the bench marks, except to the extent prohibited by federal
law.
A.
A franchisee must implement remedial requirements, including prospective
rate reductions and refund, within 60 days of the date the Township
issues an order mandating a remedy.
B.
Within 90 days of the date an order mandating a remedy is issued,
a franchisee must file a certification, signed by an authorized representative
of the franchisee:
C.
It is each franchisee's responsibility to keep books and records
of account so that it can refund any amounts owed to subscribers.
D.
It is each franchisee's duty to submit as complete a filing
as possible, and knowingly withholding information or making a filing
that is incomplete under applicable law shall be treated as an evasion
and violation of this article.
E.
Information request:
(1)
A franchisee and any other entity that has records of revenues or
expenses that are allocated to the franchisee's system must respond
to requests for information from the Board or Township by deadlines
established by the Board. A franchisee is responsible for ensuring
that such other entity responds to the requests.
(2)
Because federal law limits the time available for an initial response to a filing by a franchisee before the order contemplated by § 133-22B issues, the franchisee must be prepared to respond to requests for information regarding its filing within five days of the date an information request is mailed to it. The information may include the information the franchisee would be required to provide as part of any supplementary filing.
The Board shall be responsible for administering the provisions
herein. Without limitation and by way of illustration:
A.
The Board shall ensure notices are given to the public and each franchisee,
as required herein and by FCC regulations.
B.
The Board may submit requests for information to the franchisee and establish deadlines for response to them, as provided in § 133-24.
C.
For good cause, the Board may waive any provision herein or extend
any deadline for filing or response except as to such matters that
are mandatory under FCC regulations.
D.
The Board shall rule on any request for confidentiality.
Except as prohibited by federal law, a franchisee shall be subject
to penalties and forfeitures specified in applicable Township ordinances
currently in effect or hereafter enacted, and its request for approval
of a rate may be denied if it:
A.
Knowingly submits false or fraudulent information to the Board or
the Township in connection with any rate proceeding;
B.
Fails to comply with any lawful order or request of the Board or
the Township, including, but not limited to, a request for information
or an order setting rates; or
C.
Evades or attempts to evade federal or local rate regulation, provided
that filing for approval of a rate that is later determined to be
unreasonable is not in and of itself an evasion of federal or local
rate regulation.
A.
If these regulations or any request for information requires the
production of proprietary information, the franchisee must produce
the information. However, at the time the allegedly proprietary information
is submitted, a franchisee may request that specific, identified portions
of its response be treated as confidential and withheld from public
disclosure. The request must state the reason why the information
should be treated as proprietary and the facts that support that reason.
The request for confidentiality will be granted if the Board determines
that the preponderance of the evidence shows that nondisclosure is
consistent with the provisions of the Freedom of Information Act,
5 U.S.C. § 552. If the Board decides that information can
be withheld, it will issue a written decision explaining the basis
for withholding the information and place that decision in a public
file for inspection. If the franchisee requests confidentiality and
the request is denied: 1) where the franchisee is proposing a rate
increase, it may withdraw the proposal, in which case the alleged
proprietary information will be returned to it; or 2) the franchisee
may seek review within five working days of the denial in any appropriate
forum. Release of the information and all applicable time deadlines
for any decision by the Township or Board required by FCC and these
regulations will be stayed pending review.
B.
Any interested party may file a request to inspect material withheld
as proprietary with the Board. The Board shall weigh the policy considerations
favoring nondisclosure against the reasons cited for permitting inspection
in light of the facts of the particular case. It will then promptly
notify the requesting entity and the cable franchisee that submitted
the information as to the disposition of the request. It may grant,
deny or condition a request. The requesting party or the franchisee
may seek review of the decision by filing an appeal in any appropriate
forum. Disclosure will be stayed pending resolution of any appeal.
Any franchisee may petition for a change in status in accordance
with 47 CFR 76.915, and the Township shall consider that petition
in accordance with 47 CFR 76.915. The petition and five copies must
be filed with the Board.
The franchisee shall comply with all FCC customer service standards
and the consumer protection provisions of applicable township ordinances
in effect or hereafter enacted.
