[HISTORY: Adopted by the Borough Council of the Borough of
Denver 1-9-2017 by Ord. No. 637.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance superseded former Ch. A204,
Cable Television Franchise, adopted 8-31-2009 by Ord. No. 587.
The following terms used in this franchise shall have the following
meanings:
Any corporation, partnership or other business entity that
owns or controls, is owned or controlled by, or is under common ownership
or control with Blue Ridge.
The service tier that includes at least the retransmission
of local broadcast television signals and any educational and governmental
("EG") access channel.
Title VI of the Communications Act of 1934, as amended by
the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992 and the Telecommunications
Act of 1996, as it may, from time to time, be further amended.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the Borough,
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act,
except that such facility shall be considered a cable system (other
than for purposes of Section 621 of the Cable Act) to the extent that
facility is used in the transmission of video programming directly
to subscribers unless the extent of that use is solely to provide
interactive on-demand services;
An open video system that complies with Section 653 of the Cable
Act;
Any facilities of any electric utility used solely for operating
its electric utility systems; or
Any equipment or facilities used to transmit wireless video,
telecommunications, or broadband service.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by FCC regulation.
The federal Communications Act of 1934, as amended, and as
it may, from time to time, be further amended.
Any written (including e-mail directed to a specific department)
communication by a subscriber expressing dissatisfaction with any
aspect of Blue Ridge's business or the operation of its cable
system.
The coaxial or fiber optic or other cable that connects a
home or building to the cable system.
An access channel that consists of local educational and/or
governmental programming.
A condition that either:
Federal Communications Commission.
Acts of God; acts of public enemies, including terrorist
attacks; orders of any kind of the government of the United States
of America or the Commonwealth of Pennsylvania or any of their departments,
agencies, political subdivisions, or officials, or any civil or military
authority; insurrections; riots; labor strikes; epidemics; landslides;
lightning; earthquakes; fires; hurricanes; volcanic activity; storms;
floods; washouts; droughts; explosions; unavailability of materials
or equipment; and partial or entire failure of facilities.
The right granted by the Borough to construct, operate and
maintain a cable system within the corporate limits of the Borough
as embodied in the terms and conditions of this agreement.
The fee that Blue Ridge remits to the Borough for the use of the Borough's public rights-of-way pursuant to Section 622 of the Cable Act, 47 U.S.C. § 542, and § A204-6A of this agreement.
All revenue received directly or indirectly by Blue Ridge or
its affiliated entities arising from, attributable to, or in any way
derived from the operation of Blue Ridge's cable system in the
Borough to provide cable services. Gross revenues shall include, but
are not limited to, the following:
Basic service fees;
Fees charged to subscribers for any service tier other than
basic service;
Fees charged for premium services;
Fees for all digital video tiers;
Fees for video-on-demand;
Fees charged to subscribers for any optional, per-channel or
per-program services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for video or audio programming;
Fees for changing any level of cable service programming;
Fees for service calls;
Inside wire maintenance fees;
Service plan protection fees;
Convenience fees;
Early termination fees;
Fees for leased access channels;
Charges based on the sale or lease of any portion of the cable
system for cable service;
Rental or sales of any and all equipment, including converters
and remote control devices;
Any and all locally derived advertising revenues;
Revenues or commissions from locally derived home shopping channels;
Revenue from interactive television services;
Fees for any and all music services;
Broadcast retransmission fees;
Late payment fees;
Billing and collection fees;
NSF check charges; and
Franchise fees.
Notwithstanding the foregoing, nothing herein shall be interpreted
to enlarge the Borough's right to collect franchise fees beyond
the authority granted to the Borough by the Cable Act; and the Borough
acknowledges that revenues from advertising and home shopping channels
are received based on zip codes that do not conform to Borough boundaries.
For the purpose of calculating franchise fees, these revenues will
be prorated among franchise authorities based on the number of subscribers
within each.
Gross revenues shall not include bad debts, investment income,
refunded deposits, or any taxes on services furnished by Blue Ridge
and imposed directly upon any subscriber or user by the Borough, state,
federal or other governmental unit ("gross revenue exclusions"). Gross
revenue exclusions will be determined according to generally accepted
accounting principles ("GAAP") as promulgated and defined by the Financial
Accounting Standards Board ("FASB").
High-definition format.
Any channel on Blue Ridge's cable system designated
for use by any entity that is unaffiliated with Blue Ridge pursuant
to Section 612 of the Cable Act, 47 U.S.C. § 532.
Any building, buildings or area occupied by dwelling units,
appurtenances thereto, grounds and facilities, which dwelling units
are intended or designed to be owned, occupied or leased for occupation,
or actually occupied, as individual homes or residences for three
or more households.
Those hours during which most similar businesses in the community
are open to serve subscribers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Business conditions within Blue Ridge's service department
which are within the control of Blue Ridge. Those conditions that
are not within the control of Blue Ridge include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone
network outages and severe or unusual weather conditions.
An interior receptacle that connects a television set to
the cable system.
Any video or audio signal carried over the cable system as
part of a cable service and is generally considered comparable to
programming provided by a television broadcast station.
The surface and the area across, in, over, along, under and
upon the public streets, roads, lanes, avenues, alleys, sidewalks,
bridges, highways and other rights-of-way, as the same now or may
thereafter exist, which are under the jurisdiction or control of the
Borough.
The loss of picture or sound on one or more channels.
A person or entity who contracts with Blue Ridge for, and
lawfully receives, the video signals and cable services distributed
by the cable system.
A.
Grant of authority. Pursuant to the Cable Act, the regulations of
the FCC and Pennsylvania law, the Borough hereby grants a nonexclusive
and revocable franchise to Blue Ridge. Subject to the terms and conditions
contained herein, the Borough hereby grants to Blue Ridge the right
to own, construct, extend, install, operate, maintain, upgrade and
rebuild a cable system, including such wires, cables, fiber, conductors,
ducts, conduits, amplifiers, pedestals, attachments and other equipment
as is necessary and appropriate to the operation of the cable system
in the public rights-of-way, including property over which the Borough
has a sufficient easement or right-of-way, for the purpose of reception,
transmission, amplification, origination, distribution or redistribution
of video and audio signals to provide cable services as permitted
by applicable law.
B.
Term of franchise. The term of this agreement shall be for a period
of seven years commencing on the effective date and expiring on January
9, 2024, unless the franchise is terminated prior to the expiration
date in accordance with the terms and conditions of this agreement.
C.
Service classification and related authority. Blue Ridge acknowledges
and agrees that the system over which its video service is delivered
is a cable system for which the terms and conditions shall apply for
at least the term of this agreement. Blue Ridge further acknowledges
and agrees that the grant of authority to operate a wired cable system
does not include or preclude authority to provide wireless video services.
D.
Representations and warranties.
(1)
Blue Ridge represents, warrants and acknowledges that, as of the
effective date:
(a)
Blue Ridge is duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania;
(b)
Blue Ridge has the requisite power and authority under applicable
law and its bylaws and articles of incorporation and/or other organizational
documents, is authorized by resolutions of its Board of Directors
or other governing body, and has secured all consents which are required
to be obtained as of the effective date, to enter into and legally
bind Blue Ridge to this agreement and to take all actions necessary
to perform all of its obligations pursuant to this agreement;
(c)
This agreement is enforceable against Blue Ridge in accordance
with the provisions herein, subject to applicable state and federal
laws and regulations;
(d)
There is no action or proceeding pending or threatened against
Blue Ridge which would interfere with its performance or its ability
to perform the requirements of this agreement;
(e)
Pursuant to Section 625(f) of the Cable Act, as of the effective
date, the performance of all terms and conditions in this agreement
is commercially practicable.
E.
Nonexclusivity. This franchise granted to Blue Ridge shall be nonexclusive.
Nothing in this agreement shall affect the right of the Borough to
grant other franchises to construct, operate or maintain a cable system.
F.
Level playing field.
(1)
If the Borough grants an additional franchise for construction and/or
operation of a cable system or open video system, and such additional
franchise imposes any material obligations, as defined below, that
are more favorable or less burdensome to the competitive entity than
those contained in this agreement, then Blue Ridge may request that
the Borough amend this agreement to make such material obligation(s)
consistent with the franchise of the competitive entity.
(2)
Solely for the purposes of this section, "material obligations" are limited to the following: Blue Ridge's obligations under this agreement to pay franchise fees as set forth in § A204-6; Blue Ridge's obligations under this agreement to meet the subscriber service standards as set forth in § A204-4; and Blue Ridge's obligations under this agreement to provide service throughout the Borough as set forth in § A204-3B within a reasonable period of time after execution of the additional franchise.
G.
Franchise subject to federal, state and local laws. This franchise
is subject to and shall be governed by all lawful and applicable provisions
of federal, state and local laws and regulations. This franchise is
further subject to all applicable ordinances and resolution of the
Borough. Without waiving any of its rights, the Borough agrees that,
to the extent any term of this agreement is inconsistent with the
terms of any Borough cable franchise ordinance existing as of the
effective date, this agreement shall control.
A.
Technical requirement.
(1)
Blue Ridge shall operate, maintain, construct and extend the cable system so as to offer one-way and two-way cable services for all programming services throughout all parts of the Borough where the density requirements of Subsection B are met. The cable service provided by the cable system shall be delivered in accordance with FCC standards. The cable system shall meet or exceed any and all technical performance standards of the FCC, the National Electrical Safety Code, the National Electric Code and any other applicable federal laws and regulations and the laws, ordinances and construction standards of the Commonwealth of Pennsylvania and the generally applicable laws, ordinances and construction standards of the Borough.
(2)
Standby power at the head end(s) shall be provided in the event of
a service interruption. Standby power must activate automatically
upon the failure of commercial utility power.
B.
Area to be served.
(1)
Blue Ridge shall make cable service available to every dwelling occupied
by a person requesting cable service, provided that Blue Ridge is
able to obtain from the property owners any necessary easements and/or
permits in accordance with Section 621(a)(2) of the Cable Act. Blue
Ridge shall extend the cable system into all areas within the Borough
where there are a minimum of 30 subscribers per linear plant mile
of aerial cable and 70 subscribers per underground mile of cable,
calculated from the end of the nearest trunk line. For the purpose
of this section, a person becomes a subscriber by signing an agreement
in which the person agrees to become a subscriber upon completion
of the line extension. Blue Ridge shall complete said extensions within
three months of written notification to Blue Ridge by the Borough
that an area has met the minimum density standard set forth herein
(weather permitting). Blue Ridge's obligation hereunder shall
be subject to the timely performance of walk-out, make-ready and location
of all underground utilities. Furthermore, Blue Ridge shall not be
compelled to overbuild any other wireline video provider also serving
in the Borough.
(2)
Any dwelling unit within 200 feet aerial distance from the main distribution
line shall be entitled to a standard installation rate. For any dwelling
unit in excess of 200 feet aerial distance from the main distribution
line or that requires underground installation, Blue Ridge shall extend
the cable service at Blue Ridge's prevailing rates.
(3)
The Borough has the right to require Blue Ridge to place wires and/or
equipment underground, provided that the Borough imposes such requirement
on all similarly situated entities. All installations of wires and/or
equipment by Blue Ridge shall be underground in those areas of the
Borough where the wires and/or equipment of similarly situated entities
(i.e., telephone and electric utilities) are underground; provided,
however, that such underground locations are capable of accommodating
Blue Ridge's facilities without technical degradation of the
cable system's signal quality. Blue Ridge shall not be required
to construct, operate, or maintain underground any ground-mounted
appurtenances such as subscriber taps, line extenders, system passive
devices, amplifiers, power supplies, or pedestals.
C.
Cable system specifications.
(1)
Blue Ridge has designed, constructed and shall maintain a cable system
that has been built for digital television standards with the capability
of no fewer than 150 video channels and shall allocate a sufficient
portion of said bandwidth to deliver two-way cable services.
(2)
Blue Ridge reserves the right to alter, adjust, modify, rebuild, upgrade, redesign, or otherwise reconfigure the cable system at any time during the term of the agreement, provided that no alteration, adjustment, modification, rebuild, upgrade, redesign or other reconfiguration of the cable system shall have the effect of reducing the technical capabilities of the cable system as set forth in Subsection A.
D.
System tests. Blue Ridge shall conduct proof of performance and other
system tests as required by the FCC and retain written reports of
the results of any such tests.
E.
Emergency Alert System. Blue Ridge shall comply with the Emergency
Alert System requirements of the FCC.
F.
Rate discrimination. All Blue Ridge residential subscriber rates and charges shall be published and shall not discriminate among persons in the Borough under similar circumstances and conditions. Blue Ridge shall establish similar rates and charges for all residential subscribers receiving similar services, regardless of race, color, religion, age, sex, marital status, income or economic status, national origin, sexual orientation, physical or mental disability, or geographic location within the Borough. Nothing in this Subsection F shall be construed to prohibit:
(1)
The temporary reduction or waiving of rates and charges in conjunction
with promotional campaigns;
(2)
The offering of reasonable discounts to senior citizens or discounts
to economically disadvantaged citizens;
(3)
The establishment of different and nondiscriminatory rates and charges
and classes of services for commercial subscribers, as well as different,
nondiscriminatory monthly rates for classes of commercial subscribers;
(4)
The establishment of reduced bulk rates for residential subscribers
residing in multiple-dwelling units; or
(5)
Any requirement of equipment deposits or prepayment of service because
of poor credit standards, or both.
G.
Service to multiple-dwelling units ("MDUs"). Blue Ridge and the Borough
hereto acknowledge and agree that installation and provision of cable
service to MDUs are subject to a separate negotiation between the
landlord, owner or governing body of any such MDU and Blue Ridge,
which negotiations shall be conducted in accordance with the procedures
set forth in the Cable Act, as amended, applicable FCC regulations,
the Pennsylvania Landlord Tenant Act of 1951, as amended, and the
applicable provisions of 68 P.S. § 250.501 et seq.
H.
Repairs and restoration.
(1)
Whenever Blue Ridge or any of its agents, including any contractor
or subcontractor, takes up or disturbs any pavement, sidewalk or other
improvement of any public or private property, the same shall be replaced
and the surface restored in as good condition as before the disturbance
within 10 business days of the completion of the disturbance, weather
permitting. Upon failure of Blue Ridge to comply within the time specified,
including notice to cure, and the Borough having notified Blue Ridge
in writing of the restoration and repairs required, the Borough may
cause proper restoration and repairs to be made, and the reasonable
expense of such work shall be paid by Blue Ridge upon demand by the
Borough.
(2)
Whenever Blue Ridge or any agent, including any contractor or subcontractor,
shall install, operate or maintain equipment, cable, or wires, it
shall avoid damage and injury to property, including structures, improvements
and trees in and along the routes authorized by the Borough if required
for the proper installation, operation and maintenance of such equipment,
cable, or wires. Blue Ridge shall promptly repair and restore any
public or private property that is damaged as a result of construction,
installation, repair or maintenance of the cable system within 10
business days, weather permitting.
(3)
Blue Ridge's operation, construction, repair and maintenance
personnel, including all contractors and subcontractors, shall be
trained in the use of all equipment and the safe operation of vehicles.
Such personnel shall follow all safety procedures required by all
applicable federal, state and local laws and regulations. All areas
of the cable system shall be inspected in accordance with such applicable
federal, state and local laws and regulations so as to prevent hazardous
conditions or risks to safety for the public and/or operating and
maintenance personnel. Blue Ridge shall install and maintain its wires,
cables, fixtures, and other equipment in such a manner as shall not
interfere with any installations of the Borough or any public utility
serving the Borough.
(4)
Should a public safety emergency occur as a result of, incident to,
or connected with operation, construction, repair, or maintenance
activities by Blue Ridge personnel, including all contractors and
subcontractors, then such personnel shall immediately contact the
applicable public safety emergency dispatcher (e.g., 9-1-1).
(5)
Whenever Blue Ridge or any agent, including any contractor or subcontractor,
shall disturb any pavement, sidewalk or other public property in order
to perform any underground activity, it shall utilize the Pennsylvania
One Call System prior to any such disturbance. Blue Ridge shall adhere
to any additional undergrounding requirements which the commonwealth
may establish in the future. Blue Ridge shall adhere to all requirements
of the Pennsylvania Underground Utility Line Protection Act.
(6)
All structures and all lines, equipment and connections in, over,
under, and upon streets, sidewalks, alleys, and public and private
ways and places of the Borough, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair in accordance with customary industry
standards and practices.
I.
Service area maps. Upon request, Blue Ridge shall provide to the
Borough for its exclusive use and shall maintain at its local offices
a complete set of Blue Ridge service area strand maps of the Borough
on which shall be shown those areas in which its facilities exist
and the location of all streets. The strand maps shall be provided
to the Borough in hardcopy and also, if requested and available, in
an electronic GIS format which is compatible with the Borough's
GIS format. The strand maps shall also designate where the cable wires
and other equipment are aerial and where they are underground. Blue
Ridge shall provide the Borough with updated maps within 30 days after
any request by the Borough.
J.
Use of Blue Ridge's poles and conduit. The Borough shall have
the right to make additional use of any poles or conduits controlled
or maintained exclusively by or for Blue Ridge in any public right-of-way;
provided that:
(1)
Such use does not interfere with Blue Ridge's current use;
(2)
Such use shall not be for providing telecommunications services in
competition with Blue Ridge; and
(3)
It shall be in Blue Ridge's discretion to require the Borough
to remit a reasonable rental fee, provided that such rental fee does
not exceed those paid to Blue Ridge by public utilities operating
within the jurisdictional limits of the Borough.
K.
Disconnection and relocation.
(1)
Blue Ridge shall, at no cost to the Borough, protect, support, temporarily
disconnect, relocate in the same street, or other public way and place,
or remove from any street or any other public way or place, any of
its property as required by the Borough or its designee by reason
of traffic conditions, street construction, change or establishment
of street grade, site distance visibility, the construction of any
public improvement or structure, or any other reason related to public
health, safety and welfare.
(2)
In requiring Blue Ridge to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the Borough shall
treat Blue Ridge the same as, and require no more of Blue Ridge than,
any similarly situated entity.
L.
Emergency removal of equipment.
(1)
If, at any time, in case of fire or other disaster in the Borough,
it shall be necessary, in the reasonable judgment of the Borough or
its agent, to cut or move any of the wires, cable or equipment of
the cable system, the Borough shall have the right to do so without
cost or liability, provided that, wherever possible, the Borough shall
give Blue Ridge notice and the ability to relocate wires, cable or
other equipment.
(2)
In cutting or moving any of the wires, cable or equipment of the
cable system in the event of fire or other disaster, the Borough shall
treat Blue Ridge the same as, and require no more of Blue Ridge than,
any other similarly situated entity.
M.
Tree trimming.
(1)
Blue Ridge, or its agents, including contractors and subcontractors,
shall have the authority to trim trees upon and overhanging the public
rights-of-way so as to prevent the branches of such trees from coming
in contact with the wires, cables, or other equipment of Blue Ridge.
Any such tree trimming shall only be performed in accordance with
applicable laws and regulations.
(2)
If Blue Ridge or its agents, including contractors and subcontractors, wish to cut down and remove any tree or trees as may be necessary for the installation and/or maintenance of its equipment, it shall apply to the Borough for permission, with the exception of emergency situations as defined in § A204-1, and if permission is granted, shall perform such cutting and removal in accordance with the regulations of the Borough.
N.
Channel capacity. Blue Ridge shall meet or exceed programming and
channel capacity requirements set forth in this agreement and required
by federal and state law and regulations.
O.
Broadcast channels. To the extent required by federal law, Blue Ridge
shall provide all subscribers with basic service, including, but not
limited to: a) all broadcast television signals carried in fulfillment
of the requirements of Section 614 of the Cable Act; b) the signals
of qualified noncommercial educational television signals carried
in fulfillment of the requirements of Section 615 of the Cable Act;
and c) any educational and governmental channel pursuant to Section
611 of the Cable Act. All such signals shall be delivered to subscribers
in accordance with FCC technical specifications.
P.
Signal scrambling. Blue Ridge shall at all times comply with FCC
regulations regarding scrambling or other encryption of audio and
video signals.
Q.
Continuity of service. Subscribers shall continue to receive service from Blue Ridge, provided their financial and other obligations to Blue Ridge are honored. Subject to force majeure provisions in § A204-9A, Blue Ridge shall use its best efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. For the purpose of construction, routine repairing or testing of the cable system, Blue Ridge shall use its best efforts to interrupt service only during periods of minimum use. When necessary service interruptions of more than 24 hours can be anticipated, Blue Ridge shall notify subscribers in advance of such service interruption along with providing subscribers with a pro rata credit for the time of such service interruption.
R.
Parental control capability. Blue Ridge shall provide subscribers
with the capability to control the reception of any video and/or audio
channel on the cable system pursuant to Section 641 of the Cable Act.
A.
Office hours and telephone availability.
(1)
Blue Ridge shall maintain a business office that is conveniently
located and shall be open during normal business hours.
(2)
Blue Ridge shall provide and maintain a toll-free telephone access
line that will be available to subscribers 24 hours a day, seven days
a week. Trained representatives shall respond to subscriber telephone
inquiries during normal business hours. After normal business hours,
the access line may be answered by a service or an automated response
system. Inquiries received after normal business hours must be responded
to by a trained company representative on the next business day.
(3)
Under normal operating conditions and during normal business hours,
telephone answering time by a subscriber representative, including
wait time, shall not exceed 30 seconds after the connection is made.
If the call needs to be transferred, transfer time shall not exceed
30 seconds. These standards shall be met no less than 90% of the time,
measured on a quarterly basis. Under normal operating conditions,
the subscriber shall receive a busy signal less than 3% of the time.
(4)
If an historical record of complaints indicates a clear failure to comply, Blue Ridge may be required to perform surveys to measure compliance with the telephone answering requirements above. If the Borough determines, after receiving complaints itself and/or receiving a record of complaints made to Blue Ridge in accordance with § A204-4E and/or § A204-5G(1), that there is a clear failure to comply with the telephone answering requirements above, the Borough shall notify Blue Ridge in writing that it must measure its compliance with these requirements for the next 90 days and report to the Borough with its results.
(5)
Notwithstanding the foregoing, Blue Ridge will not be required to
acquire equipment to measure compliance with the telephone answering
standards above unless an historical record of complaints indicates
a failure to comply.
B.
Installations and service calls.
(1)
Blue Ridge shall maintain a staff of employees sufficient to provide
adequate and prompt service to its subscribers. Blue Ridge shall require
that any employee or agent, including any subcontractor, who personally
visits any residential dwelling shall display a photo identification
badge. Any vehicle used for installation, operation or maintenance
activities by any Blue Ridge employee or agent, including any subcontractor,
shall prominently display the Blue Ridge logo.
(2)
Standard installations will be performed within seven business days
after an order has been placed. "Standard" installations are those
aerial installations that are located up to 125 feet from the existing
main distribution line.
(3)
Upon scheduling of appointments with the subscriber for installations,
service calls and other activities, Blue Ridge shall provide the subscriber
with either a specific time or an "appointment window" of a maximum
of four hours during normal business hours. Blue Ridge may schedule
service calls and installation activities outside of normal business
hours at a time that is convenient for the subscriber.
(4)
Blue Ridge may not cancel an appointment with a subscriber after
the close of business on the business day prior to the scheduled appointment.
If, at any time, an installer or technician is running late, an attempt
to contact the subscriber must be made prior to the time of the appointment.
If the appointment must be rescheduled, it must be done so at a time
that is convenient for the subscriber.
C.
Notices.
(1)
Blue Ridge shall provide written notice to each subscriber upon initial
subscription or installation, and at intervals not less than one per
year thereafter, to each subscriber and at any time upon request,
regarding each of the following areas:
(a)
Products and services offered;
(b)
Prices and options for programming services and conditions of
subscription to programming and other services;
(c)
Channel positions of programming carried on the cable system;
(d)
Installation and service maintenance policies;
(e)
Instructions on how to use the cable service and any converters;
(f)
Billing and subscriber complaint procedures;
(g)
Blue Ridge's address, telephone number and office hours;
and
(h)
A notice of subscriber privacy rights as required by federal
law.
(2)
In accordance with applicable law, Blue Ridge shall notify subscribers
and the Borough in writing of any changes in rates, programming services
or channel positions a minimum of 30 days in advance of such changes,
provided that such change is within the control of Blue Ridge. Blue
Ridge shall not be required to provide prior notice to subscribers
of any rate change that is the result of a regulatory fee, franchise
fee or any other fee, tax, assessment or charge of any kind imposed
by any federal agency, the Commonwealth of Pennsylvania or the Borough
on the transaction between Blue Ridge and the subscriber.
(3)
In accordance with federal law, Blue Ridge shall maintain a file
available to the public containing all written notices provided to
subscribers pursuant to the requirements contained herein by Blue
Ridge during the previous 12 months.
D.
Billing.
(1)
Bills shall be clear, concise and understandable. Bills must be fully
itemized, with itemizations including all applicable service tiers,
equipment charges and any installation or repair charges. Bills shall
state the billing period, including an effective due date, the amount
of current billing and any relevant credits or past due balances.
(2)
Blue Ridge shall not assess late fees for nonpayment of a current
bill until at least 30 days have elapsed since the mailing of the
bill by Blue Ridge.
(3)
The Borough hereby requests that Blue Ridge omit the Borough's
name, address, and telephone number from subscriber bills as permitted
by 47 CFR § 76.952.
E.
Subscriber complaint procedures. Blue Ridge shall establish clear
written procedures for resolving all subscriber complaints, which
shall include at least the following:
(1)
Blue Ridge shall provide the subscriber with a written response to
a written complaint within 30 days of its receipt at the local business
office. Such response shall include the results of its inquiry into
the subject matter of the complaint, its conclusions based on the
inquiry, and its decision in response to the complaint.
(2)
If the Borough is contacted directly about a subscriber complaint, it shall notify Blue Ridge promptly and in writing. When Blue Ridge receives such notification, the time period for Blue Ridge to respond as required by Subsection E(1) shall commence. If the Borough notifies Blue Ridge in writing, then Blue Ridge shall respond in writing within the time period specified in Subsection E(1).
(3)
Any subscriber who, in good faith, disputes all or part of any bill
sent by Blue Ridge has the option of withholding the disputed amount,
without a late fee or disconnection, until Blue Ridge has investigated
the dispute in good faith and has made a determination that the amount
is owed, provided that:
(4)
Blue Ridge shall maintain subscriber complaint records for inspection
by the affected subscriber, which shall contain the date each complaint
is received, the name and address of the affected subscriber, a description
of the complaint, the date of resolution of the complaint, and a description
of the resolution.
F.
Disconnection. Blue Ridge may disconnect or terminate a subscriber's
service for cause including, but not limited to, the following:
(1)
If at least 30 days have elapsed from the due date of the bill that
the subscriber has failed to pay; and
(2)
If Blue Ridge has provided at least 10 days' written notice
to the affected subscriber prior to disconnection, specifying the
effective date after which cable services are subject to disconnection;
and
(3)
If there is no pending written dispute with Blue Ridge regarding
the bill; or
(4)
If at any time and without notice, Blue Ridge determines in good
faith that the subscriber has tampered with or abused Blue Ridge's
equipment or service or is engaged in theft of cable service; or
(5)
If the subscriber has made threats of or engaged in violence against
Blue Ridge employees or contractors.
G.
Service interruptions.
(1)
Excluding conditions beyond its control, Blue Ridge shall begin working
on a service interruption promptly and in no event later than 24 hours
after the interruption becomes known and shall diligently pursue it
to completion. Notice of a service interruption of a single subscriber
shall give rise to this obligation on behalf of Blue Ridge. All other
service calls not affecting public health, safety or welfare shall
occur within a maximum of 48 hours after notice to Blue Ridge or scheduled
at the convenience of the subscriber.
(2)
In the event that there is a service interruption to any subscriber
for six or more consecutive hours and upon receipt of written or credible
oral request, Blue Ridge shall grant such subscriber a pro rata credit
or rebate, on a daily basis, of that portion of the service charge
during the next consecutive billing cycle, or, at its option, apply
such credit to any outstanding balance that is currently due.
H.
Privacy. Blue Ridge shall respect the rights of privacy of every
subscriber and shall not violate such rights through the use of any
device or signal associated with the cable system. Blue Ridge shall
at all times comply with the privacy provisions of Section 631 of
the Cable Act and all other applicable federal and state privacy laws
and regulations.
A.
Right to inspect.
(1)
The Borough shall have the option, upon 30 business days written notice and during normal business hours, to inspect at the notice location for Blue Ridge specified in § A204-9C, all documents, records and other pertinent information maintained by Blue Ridge which relate to the terms of this agreement.
(2)
In addition, Blue Ridge shall maintain for inspection by the public
and the Borough all records required by the FCC and as specified in
47 CFR § 76.305 in the manner specified therein.
B.
Right to conduct compliance review. No more than one time per calendar
year, the Borough or its representatives may conduct a full compliance
review with respect to whether Blue Ridge has complied with the material
terms and conditions of this agreement, so long as it provides Blue
Ridge with 30 days' written notice in advance of the commencement
of any such review or public hearing. Such notice shall specifically
reference the section(s) or subsection(s) of the agreement that is
(are) under review, so that Blue Ridge may organize the necessary
records and documents for appropriate review by the Borough. Within
30 days of a written request, Blue Ridge shall provide the Borough
with copies of records and documents related to the cable compliance
review.
C.
Reserved authority. The Borough reserves the regulatory authority
arising from the Cable Act and any other applicable federal or state
laws or regulations. Nothing in this agreement shall remove, restrict
or reduce the Borough's authority, rights and privileges it now
holds, or which hereafter may be conferred upon it, including any
right to exercise its police powers in the regulation and control
of the use of the public rights-of-way.
D.
Police powers. Blue Ridge's rights under this agreement are
subject to the police powers of the Borough to adopt and enforce general
laws and regulations necessary for the safety and welfare of the public.
Such laws and regulations are separate and distinct from the terms
and conditions contained in this agreement.
E.
No limitation on taxing or fee authority. Nothing in this section
or in this agreement shall be construed to limit the authority of
the Borough to impose any tax, fee or assessment of general applicability.
Such taxes, fees or assessments shall be in addition to franchise
fees.
F.
Permits. Blue Ridge shall apply to the Borough for all generally
applicable required permits and shall not undertake any activities
in the public rights-of-way subject to a permit without receipt of
such permit, the issuance of which shall not be unreasonably withheld
by the Borough. Blue Ridge shall not be required to obtain permits
for cable service drops for individual subscribers or for servicing
or installation of pedestals or routine maintenance that does not
disturb surface grade or impact vehicular traffic. Blue Ridge shall
pay any and all required permit fees.
G.
Reporting. In addition to the other reporting requirements contained
in this agreement, Blue Ridge shall provide the following reports
to the Borough:
(1)
Subscriber complaint reports. Within 30 days of a written request, Blue Ridge shall submit to the Borough a report showing the number of complaints, as defined in § A204-1, that required a work order and/or service call, originating from the Borough and received during the previous twelve-month reporting period, the dates they were received, summary descriptions of the complaints, the dates the complaints were resolved and summary descriptions of the resolutions. The reports may be in the form of "trouble reports" that are internally generated by Blue Ridge.
(2)
Annual financial reports. Within 30 days of a written request, Blue
Ridge shall submit to the Borough a statement from its auditors and
certified by Blue Ridge's Chief Financial Officer that Blue Ridge
is solvent and has the financial means to meet its obligations under
this agreement.
(3)
Government reports. Blue Ridge shall provide to the Borough, upon
written request, copies of any and all communications, reports, documents,
pleadings and notifications of any kind which Blue Ridge has submitted
to any federal, state or local regulatory agencies if such documents
relate specifically to Blue Ridge's cable system within the Borough.
Blue Ridge shall provide copies of such documents no later than 30
days after their request.
A.
Franchise fees. Blue Ridge shall pay to the Borough an amount equal
to 5% of the gross revenues derived from the operation of its cable
system to provide cable service in the Borough. Blue Ridge shall not
deduct or otherwise credit against the franchise fee any tax, fee
or assessment of general applicability. The Borough may amend the
franchise fee upon written notice to Blue Ridge, provided that the
franchise fee may not exceed the maximum percentage permitted by law.
A copy of the resolution or ordinance authorizing the franchise fee
rate adjustment by the Borough shall accompany such written notice.
Any change in Blue Ridge's franchise fee obligation contained
herein shall commence within 60 days from such written notice.
B.
Quarterly payments. Franchise fee payments to the Borough under this
provision shall be computed at the end of each calendar quarter. Such
payments shall be made within 45 days following the end of each calendar
quarter. Specifically, payments shall be due and payable on or before
May 15 (for the first quarter), August 15 (for the second quarter),
November 15 (for the third quarter), and February 15 (for the fourth
quarter). In the event that any franchise fee payment is not made
on or before the date by which it is due, then interest calculated
at the then-current prime rate, as published by the Wall Street Journal,
shall be added to the amount of franchise fee revenue due to the Borough.
The interest rate shall be applied as described from the date such
franchise fee payment was originally due. No acceptance of any payment
shall be construed as an accord that the amount paid is in fact the
correct amount, nor shall acceptance of any payment be construed as
a release of any claim the Borough may have for additional sums payable
under this agreement. Upon request and if mutually agreeable, Blue
Ridge shall deposit the franchise fee payments electronically into
an account as designated by the Borough.
C.
Quarterly reports. Each franchise fee payment shall be accompanied
by a written report containing an accurate statement of Blue Ridge's
gross revenues received for cable services for each calendar quarter
in connection with the operation of Blue Ridge's cable system
and showing the basis for the computation of fees. Specifically, the
report shall contain line items for sources of revenue received and
the amount of revenue received from each source. The report shall
be verified by a financial representative of Blue Ridge.
D.
Franchise fee review. The Borough shall have the right to conduct
a franchise fee review of Blue Ridge's records reasonably related
to the sources, amounts and computation of gross revenues. Any such
franchise fee review shall occur within 60 months from the date the
Borough receives such payment, after which period any such payment
shall be considered final. Within 30 days of a written request, Blue
Ridge shall provide the Borough with copies of financial records related
to the franchise fee review.
(1)
In the event of an alleged underpayment, the Borough shall provide Blue Ridge with a written statement indicating the basis for the alleged underpayment. If the franchise fee review reveals that there have been no underpayments, the Borough shall provide written notice to Blue Ridge indicating that no underpayments were found and that the franchise fee review is closed. Blue Ridge shall have 30 days from the receipt of the statement regarding an alleged underpayment to provide the Borough with any written objection to the results of the franchise fee review, including any substantiating documentation. Based on this exchange of information, the Borough shall make a final determination of the underpayment(s), if any, within 30 days of Blue Ridge's objection and shall provide Blue Ridge with written notice of the determination. If Blue Ridge disputes the Borough's final determination, it may submit the dispute to mediation or arbitration in accordance with § A204-9G below within 30 days of receiving the Borough's written notice of determination. In the event that Blue Ridge fails to submit the matter to mediation or arbitration within the required time period, the Borough's final determination shall be binding on Blue Ridge.
(2)
Any franchise fee payment due to the Borough as a result of the franchise
fee review shall be paid to the Borough by Blue Ridge within 45 days
from the date the Borough notifies Blue Ridge of its final determination,
or if the matter is submitted to mediation or litigation, within 45
days from the final disposition of such action. If the franchise fee
review shows that franchise fees have been underpaid, then Blue Ridge
shall pay the underpaid amount plus monetary fines of 10% of the underpayment.
If franchise fees have been underpaid by 5% or more, then Blue Ridge
shall also pay up to $6,000 of documented out-of-pocket costs of the
franchise fee review.
E.
Bundled services. If cable services subject to the franchise fee required under this § A204-6 are provided to subscribers in conjunction with noncable services and the total cost of the bundle reflects a discount from the aggregate retail prices of the services contained therein, then the franchise fee shall be applied to the retail price of the cable services in the bundle reduced by no more than a proportionate share of the overall discount.
F.
Franchise fee revenue allocation. For purposes of franchise fee revenue
pertaining to any revenue sources that is allocated among cable, telecommunications,
and/or information services, Blue Ridge agrees to determine the allocation
of revenue among these services based upon the actual number of subscribers
in the Borough that subscribe to each respective service.
A.
Services to community facilities. Upon request, Blue Ridge shall,
at no charge to the Borough, provide one complimentary standard installation
and complimentary services as described hereinbelow to all present
and future public facilities, including, but not limited to, the following:
the Borough Building, police stations, fire companies, public works
buildings, municipal community facilities, water and sewer authorities,
all public and private school buildings and public libraries ("permitted
locations") and as further set forth on Exhibit A[1] noting the distinction between cable service and Internet
service as set forth below. In addition, Blue Ridge shall not terminate
any complimentary courtesy cable service being provided to permitted
locations as of the effective date of this agreement.
(1)
Within three months of the effective date and upon request, Blue
Ridge shall provide or maintain one standard cable drop, outlet, converter
box (and any other required end user equipment) and Basic Plus level
services (or equivalent) package to each permitted location. No charge
shall be made for standard installation, except that Blue Ridge may
charge for underground and/or installation beyond 200 feet from the
cable plant or for more than one drop in each permitted location.
(2)
Within three months of the effective date and upon request, Blue
Ridge shall provide or maintain one high-speed Internet access service
connection to one permitted location. No charge shall be made for
installation or service except that Blue Ridge may charge for installation
beyond 200 feet from the cable plant.
(3)
For the purposes of this section, the term "school" means an educational
institution that receives funding pursuant to Title I of the Elementary
and Secondary Education Act of 1965, 20 U.S.C. § 6301 et
seq., as amended, and does not include home schools or cyber schools,
or any other educational situation that does not meet the specific
criteria set forth herein. During the term of this agreement, new
public facilities shall be eligible to receive such complimentary
service to the extent that they meet the qualifications as set forth
hereinabove as permitted free locations.
[1]
Editor's Note: Exhibit A is included as an attachment to this chapter.
B.
Educational and governmental (EG) channel.
(1)
The Borough reserves the right to obtain from Blue Ridge, within
60 days of a written request by the Borough, an educational and governmental
("EG") channel in accordance with Section 611 of the Cable Act for
exclusive use by the Borough and/or its designee. The EG channel shall
be used for programming related to governmental and/or educational
activities. The Borough shall have complete control over the content,
scheduling, administration and all other aspects of the EG channel
and may delegate certain or all such functions to an appropriate designee.
Blue Ridge shall not exercise any editorial control over EG channel
programming.
(2)
The Borough may obtain the EG channel pursuant to this Subsection B upon the earlier of the following two events: 1) when Blue Ridge has converted its cable system to a fully digitized transmission (i.e., Blue Ridge no longer utilizes the analog spectrum for transmitting cable programming); or 2) four years from the effective date.
(3)
To enable the Borough and/or its designees to utilize the EG channel,
the Borough shall select, and Blue Ridge shall connect to the cable
system, a mutually agreeable remote origination point. Blue Ridge
shall provide and install, at its sole cost and expense, within 60
days of receiving notice from the Borough that it wishes to obtain
an EG channel, cable, wire, lines and/or other necessary signal distribution
equipment such that live or tape playback of cablecasts or other programming
can originate from the selected location and be distributed via the
cable system to Subscribers in the Borough. These cables, wires, lines
and other signal distribution equipment shall be collectively known
as the "return line." Blue Ridge shall distribute the video signals
for the EG channel in high-quality resolution and shall cablecast
the signals on the Digital Basic Service Tier.
(4)
The Borough and Blue Ridge agree that any and all costs incurred
by Blue Ridge for providing the EG channel and supporting such channel,
including any and all equipment and maintenance and repair, may be
designated as "costs of franchise requirements" or "external costs"
as defined by the FCC, except that it is mutually agreed that such
costs shall not be itemized on subscribers' bills.
(5)
Blue Ridge shall not be obliged to provide the Borough with studio
equipment (i.e., camera, lights, microphones, office furnishings,
etc.) under this EG channel provision.
A.
Violations and opportunity to cure.
(1)
If the Borough has reason to believe that Blue Ridge violated any
provision of this agreement, it shall notify Blue Ridge in writing
of the nature of such violation and the section(s) of this agreement
that it believes has been violated and the details relating thereto.
If the Borough does not notify Blue Ridge of any violation of this
agreement, it shall not operate as a waiver of any rights of the Borough
hereunder or pursuant to applicable law.
(2)
Blue Ridge shall have 30 days to cure such violation after written
notice is received by taking appropriate steps to comply with the
terms of this agreement. If the nature of the violation is such that
it cannot be fully cured within 30 days, the period of time in which
Blue Ridge must cure the violation shall be extended by the Borough
in writing for such additional time necessary to complete the cure,
provided that Blue Ridge shall have promptly commenced to cure and
is diligently pursuing its efforts to cure in the reasonable judgment
of the Borough.
(3)
If the violation has not been cured within the time allowed under Subsection A(2), and, in the Borough's judgment, Blue Ridge has not taken reasonable steps to cure the violation, then the Borough may deem that Blue Ridge is liable for liquidated damages and/or any other right or remedy and the Borough's costs in accordance with Subsection B.
B.
Liquidated damages.
(1)
Because Blue Ridge's failure to comply with provisions of this agreement will result in injury to the Borough and because it will be difficult to measure the extent of such injury, the Borough may assess liquidated damages against Blue Ridge in the amount of $250 per day for each day the violation continues, provided Blue Ridge has had an opportunity to cure in accordance with Subsection A(2). Such damages shall not be a substitute for specific performance by Blue Ridge or legal action by the Borough, but shall be in addition to such specific performance or legal action.
(2)
The first day for which liquidated damages may be assessed, if there
has been no cure after the end of the applicable cure period, shall
be the day after the end of the applicable cure period, including
any extension of the cure period granted by the Borough. Liquidated
damages may not be assessed for a time period exceeding 120 days per
violation. The Borough may commence revocation proceedings and/or
initiate an action in law or equity in a court of competent jurisdiction
before, during, or after the assessment of liquidated damages.
C.
Revocation.
(1)
In addition to the other rights, powers and remedies retained by
the Borough under this agreement, the Borough reserves the separate
and distinct right to revoke this franchise if:
(a)
It is demonstrated that Blue Ridge practiced any fraud or deceit
upon the Borough in the operation of its cable system or any other
activities pursuant to this agreement;
(b)
Blue Ridge repeatedly fails, after notice and opportunity to cure, to maintain signal quality pursuant to the standards provided for by the FCC or the technical requirements set forth in § A204-3A;
(c)
Blue Ridge repeatedly violates, after notice and opportunity
to cure, one or more of the material terms or conditions of this agreement;
(d)
There shall be an appointment of a receiver or trustee to take
over and conduct the business of Blue Ridge, whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless:
[1]
The receivership or trusteeship is vacated within 120 days of
appointment; or
[2]
The receivers or trustees have, within 120 days after their
election or appointment, fully complied with all the terms and provisions
of this agreement and have remedied all defaults under this agreement.
Additionally, the receivers or trustees shall have executed an agreement
duly approved by the court having jurisdiction, by which the receivers
or trustees assume and agree to be bound by each and every term, provision
and limitation of this agreement.
(2)
The foregoing shall not constitute a violation of a material term or condition if the violation occurs without the fault of Blue Ridge or occurs as a result of circumstances beyond its control or by reason of force majeure as defined in § A204-9A. Blue Ridge shall not be excused from the performance of any of its obligations under this franchise by mere economic hardship or by the misfeasance or malfeasance of its directors, officers or employees.
(3)
A revocation shall be declared only by a written decision of the
Borough Council after an appropriate public hearing that shall afford
Blue Ridge due process and full opportunity to be heard. This shall
include the ability to introduce evidence, to question witnesses and
to respond to any notice of grounds to terminate in accordance with
the standards of a fair hearing applicable to administrative hearings
in the Commonwealth of Pennsylvania. All notice requirements shall
be met by providing Blue Ridge at least 30 days' prior written
notice (via certified mail, return receipt requested) of any public
hearing concerning the proposed revocation of this franchise. Such
notice shall state the grounds for revocation. The Borough, after
a public hearing and upon finding the existence of grounds for revocation,
may either declare this franchise terminated or excuse such grounds
upon a showing by Blue Ridge of mitigating circumstances or good cause
for the existence of such grounds. The Borough shall issue such declaration
and finding within 30 days in a written decision which shall be sent
via certified or overnight mail to Blue Ridge.
D.
Performance bond.
(1)
Blue Ridge shall obtain and maintain, within 30 days of the effective date and throughout the term of this agreement, at its sole cost and expense, a performance bond with a surety company licensed to do business in the Commonwealth of Pennsylvania to ensure Blue Ridge's faithful performance of its obligations. The performance bond shall provide that the Borough may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Borough for Blue Ridge's violations of this agreement, after notice and opportunity to cure, in accordance with Subsections A and B.
(2)
The performance bond shall be in the amount of $25,000. Blue Ridge
shall not reduce, cancel or materially change said bond from the requirement
contained herein without the express prior written permission of the
Borough.
E.
Insurance.
(1)
Blue Ridge shall obtain and maintain, in full force and effect, at
its sole cost and expense, during the franchise term, the following
minimum insurance coverage with an insurance company that is authorized
to conduct business in Pennsylvania and which has an A.M. Best rating
(or equivalent) no less than A-minus VII, indemnifying the Borough
from and against any and all claims for injury or damage to persons
or property, both real and personal, caused by the construction, installation,
reconstruction, operation, maintenance or removal of the cable system
by Blue Ridge or any of its contractors, subcontractors, agents or
employees in the following amounts:
(a)
The amount of such insurance against liability for damage to
property shall be no less than $1,000,000 as to any one occurrence.
(b)
The amount of such insurance against liability for injury or
death to any person shall be no less than $1,000,000.
(c)
The amount of such insurance for excess liability shall be $3,000,000
in umbrella form.
(d)
The amount of such insurance against all claims arising out
of the operation of motor vehicles and general tort or contract liability
shall be $1,000,000.
(2)
The Borough, its officials and employees, shall be designated as additional insureds under each of the insurance policies required in this Subsection E.
(3)
Blue Ridge shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Subsection E, and without submitting insurance certificates to the Borough verifying that Blue Ridge has obtained such alternative insurance. Blue Ridge shall provide the Borough with at least 30 days' prior written notice in the event there is an adverse material change in coverage or the policies are canceled or not renewed.
(4)
Blue Ridge shall deliver to the Borough certificates of insurance
showing evidence of the required coverage within 30 days of the effective
date of the agreement, upon request by the Borough.
F.
Indemnification. Blue Ridge shall indemnify, defend, save and hold
harmless the Borough, its elected and appointed officials, officers,
agents and employees acting in their official capacities, from claims
for injury, loss, liability, cost or expense arising in whole or in
part from, caused by or connected with any act or omission of Blue
Ridge, its officers, agents, contractors, subcontractors or employees,
arising out of, but not limited to, the construction, installation,
upgrade, reconstruction, operation, maintenance or removal of the
cable system or any other equipment or facilities of Blue Ridge. The
Borough shall give Blue Ridge timely written notice of its obligation
to indemnify and defend the Borough. The obligation to indemnify,
defend, save and hold the Borough harmless shall include, but not
be limited to, the obligation to pay judgments, injuries, liabilities,
damages, penalties, and reasonable attorneys' fees. If the Borough
determines that it is necessary for it to employ separate counsel,
in addition to that provided by Blue Ridge, the cost for such separate
counsel shall be the responsibility of the Borough. Blue Ridge shall
not indemnify the Borough for any claims resulting solely from acts
of willful misconduct or negligence on the part of the Borough.
A.
Force majeure. If for any reason of force majeure, Blue Ridge is
unable in whole or in part to carry out its obligations hereunder,
Blue Ridge shall not be deemed in violation of this agreement during
the continuance of such inability.
B.
Removal of system.
(1)
Upon lawful termination or revocation of this agreement, Blue Ridge
shall remove its supporting structures, poles, transmissions and distribution
systems and other appurtenances from the streets, ways, lanes, alleys,
parkways, bridges, highways, and other public and private places in,
over, under, or along which they are installed and shall restore the
areas to their original condition. If such removal is not completed
within six months of such lawful termination or revocation, the Borough
or property owner may deem any property not removed as having been
abandoned, and the Borough may remove it at Blue Ridge's cost.
(2)
During the term of the agreement, if Blue Ridge decides to abandon
or no longer use all or part of its cable system, it shall give the
Borough written notice of its intent at least 90 days prior to the
announcement of such decision, which notice shall describe the property
and its location. The Borough shall have the right to either require
Blue Ridge to remove the property, remove the property itself and
charge Blue Ridge with the costs related thereto, or transfer ownership
of the property to the Borough's designee, provided fair market
value is paid to Blue Ridge.
(3)
Notwithstanding the above, Blue Ridge shall not be required to remove
its cable system, or to relocate the cable system, or to sell the
cable system, or any portion thereof, as a result of revocation, denial
of renewal, or any other lawful action to forbid or disallow Blue
Ridge from providing cable services, if the cable system is actively
being used to facilitate any other services not governed by the Cable
Act.
C.
Notices.
(1)
Every notice or payment to be served upon or made to the Borough
shall be sent to:
|
Borough Manager
Borough of Denver
501 Main Street
Denver, PA 17517
|
(2)
The Borough may specify any change of address in writing to Blue
Ridge. Every notice to be served upon Blue Ridge shall be sent to:
|
Blue Ridge Communications
613 Third Street, P.O. Box 215
Palmerton, PA 18071
David L. Masenheimer, President
|
(3)
Blue Ridge may specify any changes of address in writing to the Borough.
Each delivery to Blue Ridge or the Borough shall be equivalent to
direct personal notice, direction or order, and shall be deemed to
have been given at the time of receipt.
D.
Equal employment opportunity. Blue Ridge is an equal opportunity
employer and shall comply with all applicable federal and state laws
and regulations regarding equal opportunity employment.
E.
Captions. The captions for sections throughout this agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this agreement. Such captions shall not affect the
meaning or interpretation of this agreement.
F.
Governing law; venue. This agreement shall be governed and construed
by and in accordance with the laws of the Commonwealth of Pennsylvania.
If suit is brought by a party to this agreement, the parties agree
that trial of such action shall be vested exclusively in the state
courts of Pennsylvania, County of Lancaster, or in the United States
District Court for the Eastern District of Pennsylvania.
G.
Dispute resolution.
(1)
Arbitration.
(a)
Any dispute between the parties hereto, including, but not limited
to, disputes or controversies arising from or related to interpretation
of this agreement, may be arbitrated, provided that both parties consent
in writing to the arbitration. Such arbitration shall be final and
binding, and the parties shall have no right to appeal from the arbitrator's
decision.
(b)
The Borough may initiate arbitration by resolution of its Borough
Council, while Blue Ridge may initiate arbitration by sending written
notice to the Borough.
(c)
After arbitration has been initiated, the Borough and Blue Ridge
may agree that one arbitrator may conduct the arbitration and may
mutually select such arbitrator.
(d)
If either the Borough or Blue Ridge does not consent to having
one arbitrator conduct the arbitration, or if the parties cannot agree
upon the identity of such arbitrator, the arbitration shall be conducted
by three arbitrators, who shall be selected as follows:
[1]
If the Borough initiates arbitration, the Borough shall select
one arbitrator, and Blue Ridge, by written notice, shall select one
arbitrator within 15 days after receiving notice of the Borough's
selected arbitrator. If Blue Ridge initiates arbitration, it shall
select one arbitrator, and the Borough shall select one arbitrator
within 15 days after receiving notice of the Blue Ridge's selected
arbitrator.
[2]
The two selected arbitrators shall select a third arbitrator
within 15 days after the appointment of the second arbitrator. If
the two arbitrators are unable to agree upon a third arbitrator within
the time limit, the third arbitrator shall be appointed by the presiding
Civil Judge of the Lancaster County Court of Common Pleas.
(e)
After selection of the arbitrator(s), the arbitrator(s) shall
take an oath to serve neutrally and impartially. The arbitrator(s)
shall then schedule a date, time and place for the arbitration hearing.
The hearing shall occur not less than 120 days after the appointment
of the arbitrator (or the third arbitrator, if three arbitrators are
used), unless extended by mutual agreement of the Borough and Blue
Ridge. The arbitrator(s) shall make a written report to the Borough
and Blue Ridge on the final determination within 30 days after completion
of the hearing. If the arbitration is conducted by three arbitrators,
the determination of a majority of the arbitrators shall constitute
a final, binding arbitration determination. The arbitration shall
be conducted according to the Uniform Arbitration Act.[1]
[1]
Editor's Note: See 42 Pa.C.S.A. § 7301 et seq.
(f)
The Borough and Blue Ridge shall share equally and separately
the fees and costs of the arbitrator(s).
(2)
Mediation. The Borough and Blue Ridge agree that, should any dispute arise between the parties concerning any aspect of this agreement which is not resolved by mutual agreement of the parties, the dispute may be submitted to mediated negotiation prior to any party commencing arbitration or litigation, provided that both parties consent in writing to the mediation. In such event, the Borough and Blue Ridge may agree to participate in good faith in a nonbinding mediation process. The mediator shall be selected by mutual agreement of the parties. In the absence of such mutual agreement, each party shall select a temporary mediator, and those mediators shall jointly select a permanent mediator. If the Borough and Blue Ridge are unable to successfully conclude the mediation within 60 days from the date of the selection of the mediator, either party may terminate further mediation by sending written notice to the other party. After written termination notice has been received by the other party, either party may request arbitration, as set forth in Subsection G(1), or may pursue any other available legal remedies. All costs associated with mediation shall be borne, equally and separately, by the parties.
H.
Transfer, assignment or change in control.
(1)
Neither Blue Ridge nor its parent nor any affiliated entity shall
transfer or assign or otherwise encumber, through its own action or
by operation of law, its right, title or interest in the cable system
or in this agreement without the prior written consent of the Borough,
provided that such consent shall not be unreasonably withheld.
(2)
Neither Blue Ridge nor its parent nor any affiliated entity shall
change, transfer or assign, through its own action or by operation
of law, its control of the cable system or of this agreement without
the prior written consent of the Borough, provided that such consent
shall not be unreasonably withheld.
(3)
Neither Blue Ridge nor its parent nor any affiliated entity shall
sell, convey, transfer, exchange or release more than 50% of its equitable
ownership in the cable system without the prior written consent of
the Borough, provided that such consent shall not be unreasonably
withheld.
(4)
No such consent shall be required for i) a transfer in trust, by
mortgage, hypothecation, or by assignment, to a financial institution
of any rights, title or interest of Blue Ridge in the franchise or
in the cable system in order to secure indebtedness; or ii) a transfer
to an entity owned and/or controlled by Blue Ridge.
(5)
Blue Ridge shall make written application to the Borough of any transfer,
change in control or assignment as described above and shall provide
all information required by FCC Form 394 and any other applicable
federal, state, and local statutes and regulations regarding transfer
or assignment. The Borough shall have 30 days from the receipt of
FCC Form 394 to notify Blue Ridge of any additional information it
needs to make an informed decision on the transfer or assignment.
The Borough shall have 120 days from the receipt of all required information
to take action on the transfer or assignment.
(6)
Any consent by the Borough for any transfer or assignment described
above shall not be effective until the proposed transferee or assignee
shall have executed a legally binding document stating that it shall
be bound by all the terms and conditions contained in this agreement.
I.
Entire agreement. This written instrument contains the entire agreement
between the parties, supersedes all prior agreements or proposals,
whether written or oral, except as specifically incorporated herein,
and cannot be changed without written amendment approved by both the
Borough and Blue Ridge. This agreement supersedes all prior cable
franchise agreements or cable ordinances, or parts of cable franchise
agreements or cable ordinances, that are in conflict with the provisions
herein.
J.
Severability. If any section, provision or clause of this agreement
is held by a court of competent jurisdiction to be illegal, invalid
or unenforceable, or is pre-empted by federal or state laws or regulations,
such section, provision or clause shall be deemed to be severable
from the remaining portions of this agreement and shall not affect
the legality, validity or enforceability of the remaining portions
of this agreement.
K.
No waiver of rights. No course of dealing between the Borough and
Blue Ridge, nor any delay on the part of the Borough in exercising
any rights hereunder, shall operate as a waiver of any such rights
of the Borough or acquiescence in the actions of Blue Ridge in contravention
of such rights, except to the extent expressly waived by the Borough.
L.
Change of law. In the event there is a change in a federal or state
statute or regulation applicable to the cable system or to this agreement,
the Borough or Blue Ridge may notify the other party of its desire
to amend this agreement in order to comply with the change in statute
or regulation. The Borough and Blue Ridge may amend this agreement
to comply with such change in statute or regulation, provided such
amendment is approved by the Borough and Blue Ridge.
M.
Compliance with laws. Blue Ridge shall comply with all federal, state
and local laws and regulations.
N.
Third-party beneficiaries. Nothing in this agreement is or was intended
to confer third-party beneficiary status on any person other than
the parties to this agreement to enforce the terms of this agreement.
O.
Applicability of agreement. All of the provisions in this agreement
shall bind Blue Ridge, the Borough and their respective successors
and assigns. This agreement is authorized by Ordinance No. 637, dated
January 9, 2017, of the Borough Council.
