[HISTORY: Adopted by the Borough Council of the Borough of Downingtown 12-12-1990 by Ord. No. 1990-20. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. A291, Cable Television Franchise, adopted 4-10-1974 by Ord. No. 74-4, as amended.
This ordinance shall be known and may be cited as the "Borough of Downingtown Community Antenna Television Ordinance."
When used in this ordinance, 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.
- ANNIVERSARY DATE
- 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.
- BASIC CABLE
- 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 the public, educational and governmental channels, as required by the franchising authority pursuant to Title VI of the Cable Communications Policy Act.
- BASIC SUBSCRIBER REVENUES
- 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.
- The Borough of Downingtown, also called the "franchising authority."
- CABLE COMMUNICATIONS POLICY ACT OF 1984
- That body of federal law which was enacted on October 30, 1984, and having an effective date of December 29, 1984, and any amendments thereto.
- CABLE SERVICE
- The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
- CABLE TELEVISION SYSTEM (CATV)
- A system consisting 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 to subscribing members of the public within the Borough of Downingtown for a fixed or periodic fee, employing wires or cables passing along, over, under, across and upon streets, ways, lanes, alleys, parkways, bridges, highways and other public places, including property of which the Borough has an easement or right-of-way, and including facilities which, in addition to providing such reception, amplification and distribution, are also used to originate and distribute programs or other communication services or materials to such subscribers.
- COMMERCIAL SUBSCRIBER
- A person who contracts to receive the signals amplified and distributed or locally originated and distributed by the grantee and carried, consistent with the community antenna television rules of the Federal Communications Commission, to provide service to television sets of others, or a person who exhibits programs to customers or the general public.
- The Borough Council of the Borough of Downingtown.
- The initial authorization or renewal thereof issued by the Borough, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.
- FRANCHISE AREA
- That area within the limits of the Borough of Downingtown as now or hereafter constituted.
- The grantee (franchise holder) of rights granted by the Borough under this ordinance; a franchisee.
- GROSS BASIC SUBSCRIBER REVENUES
- The monthly cable service revenues actually received by the grantee from subscribers of the cable system, including fees for converters. Excluded are revenues actually received in payment for Prism, 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.
- PAY SERVICE REVENUES
- Gross basis subscriber revenues received from so-called premium channels such as, but not limited to, Prism, HBO, Cinemax, Showtime, Disney and similar programming less the amount which the franchisee actually pays to the provider of said service.
- An individual, partnership, association, joint-stock company, trust corporation or other legal entity.
- PROPERTY OF GRANTEE
- All property owned, installed or used by the grantee in the conduct of a cable television system in the Borough.
- PUBLIC WAY
- 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, lane, public way, drive, circle or other public right-of-way, including but not limited to public utility easements, dedicated utility strips or rights-of-way, and any temporary or permanent fixtures or improvements located thereon, now or hereafter held, owned or dedicated to the Borough.
- SERVICE TIER
- 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 Borough.
- A person or user of the cable system who lawfully receives cable service or other service therefrom with the grantee's expressed permission.
- VIDEO PROGRAMMING
- Programming provided by or generally considered comparable to programming provided by a television broadcast station.
Upon application duly made, the Borough 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 Borough, 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 additions thereto in the franchise area, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers and other necessary Borough-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 the Borough. The Borough may promulgate a form for 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 ordinance 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 Borough 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 Borough. 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 Borough. Such adjustments shall be accomplished through notification filed with the Borough Secretary and shall occur automatically on the date established by the grantee.
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 Borough. The rights granted hereunder shall continue in full force and effect for an initial period of not less than 10 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 Borough 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 Borough at its administrative offices.
Prior to the issuance or renewal of any franchise to operate a cable television system within the Borough, Council 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 Borough. 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:
Whether the grantee has or can substantially comply with the material terms of the proposed franchise agreement, the ordinance and all other applicable law.
Whether the quality of the grantee's service has or will be reasonable in light of community needs.
Whether the grantee has the financial, legal and technical ability to provide the services, facilities and equipment proposed.
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.
Any proceedings undertaken by the Borough that relate 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, and amendments thereto, 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.
In addition to the procedures set forth in Section 626(a), the Borough 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 Borough, in its discretion may agree to undertake and finalize negotiations with the grantee regarding renewal of the then current franchise agreement, and the Borough may grant a renewal thereof, in its discretion.
To the extent possible, all franchise facilities shall be attached to existing poles. To the extent that 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 Borough Engineer; provided, however, that the approval of the Borough 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. The grantee shall restore the property to its condition immediately prior to repair within 10 working days of completing construction and maintenance.
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 Borough in a manner which will not interfere with the use of such poles, towers and other electrical facilities by the Borough, provided that no such attachment shall take place unless 10 days' prior written notice has been given by the grantee to any received by the Borough and the Borough has failed to object to such attachment within that time.
The grantee shall have the authority, power and privilege to trim trees upon and overhanging streets, alleys, sidewalks and public ways and places in the Borough so as to prevent branches of such trees from being in contact with the wires and cables of the grantee.
The grantee shall pay to the Borough an annual fee for each pole utilized by the grantee owned by the Borough, 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 Borough shall be the higher of the negotiated utility contract fees, but not less than the aforesaid minimum fee.
All holders of public licenses and franchises within the corporate limits of the Borough 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 Borough shall be minimized.
Each grantee shall extend to the Borough, 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 Borough shall hold each grantee harmless from any and all action, causes of action or damage caused by any action of the Borough in placing wires or appurtenances upon the poles of the grantee.
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 Borough 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.
In case of disturbance of any street or paved area, the grantee shall, at its expense and in a manner approved by the Borough Engineer, replace and restore such street or paved area in as good condition as theretofore.
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 Borough 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 Borough, but the grantee shall, in all cases, have the right of abandonment of its property, subject to Borough ordinances.
Should the Borough seek to alter, improve, redevelop or refurbish any street(s) or area presently served by the existing cable television system, the Borough 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.
Should the Borough 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 communication 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 Borough 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 Borough may, by mutual agreement, arrange to continue to service the affected area and achieve appropriate reimbursement by deducting a negotiated, fixed amount from the franchise fee paid to the Borough. The fixed amount shall be specified and described in an itemized statement of charges which shall be submitted by the grantee to the Borough for approval. The Borough shall not expend funds as prepayment for relocation and shall only be required to expend actual, available Borough funds if, in the Borough's discretion, total reimbursement, mutually agreed to, cannot be accomplished through quarterly deductions from the franchise fee due the Borough.
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 the 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 Borough purposes and shall be done at the request of the Borough, then it shall be accomplished by the grantee at no charge to the Borough. The grantee shall be given not less than 10 business days advance notice to arrange for such temporary wire changes.
To the extent that the Borough shall have the authority to grant the same and after approval of the property owner, subject to prior written approval of the Borough 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 coming in contact with the grantee's wires and cable lines over private property.
Subject to any applicable commonwealth or federal regulations or tariffs, the Borough 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 that:
Such use by the Borough does not interfere with the use by the grantee.
The Borough holds the grantee harmless against and from all claims, demands, causes of action, suits, actions, proceedings, damages, costs or liabilities of every kind and nature whatsoever arising out of such use of said poles and conduits.
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 Borough 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.
Each grantee whose application is approved pursuant to this ordinance 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.
Each grantee shall furnish, upon request, free of charge, at least one service distribution connection to each school, fire station, police station, Borough administration building and public library located within the Borough 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.
In the case of any emergency or disaster, the grantee shall, upon the Borough's request, make available its facilities to the Borough for emergency use during the emergency or disaster period.
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 Federal Communications Commission or other federal, commonwealth or local regulations.
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.
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.
Whenever the grantee shall have received written requests for service from at least 15 subscribers within 400 cable meters (1,300 cable feet) of its aerial trunk cable or from at least 25 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.
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 subscriber density exists less than the density as specified hereinabove, 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.
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 Borough. However, absent such agreement(s), the grantee shall have no obligation to serve such areas. Circumstances shall be timely reported to the Borough.
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 Borough who shall have the right of review, and Borough approval of the plans and specifications shall be obtained before installation. Unreasonable delay in Borough approval or untimely Borough approval caused by Borough 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 the Borough.
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 construct, operate and maintain all of its transmission and distribution facilities or any part thereof 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 this agreement, the grantee shall be required to construct, operate and maintain all of its transmission and distribution facilities underground (excepting vaults). The grantee shall restore the property to its condition immediately prior to construction, repair and maintenance within 10 working days of completing said construction, repair and maintenance.
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).
The Borough 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 ordinance 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 that 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 Borough 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.
Each grantee shall, at all times, be subject to the provisions of this ordinance and regulations adopted by the Borough 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.
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.
The grantee shall maintain a local business office and a local telephone service, which shall be toll free to the caller for calls originating from within the Borough of Downingtown, for the purpose of receiving inquiries 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 72 hours during the period from 8:00 a.m. through 11:00 p.m. six days per week, Monday through Saturday, 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 72 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 Borough Code Enforcement Officer upon 48 hours prior oral or written request.
The grantee shall maintain on file with the Borough Secretary a schedule setting forth all rates and charges to be made to subscribers for basic cable television service, including connection and service charges. A copy of the current rates is attached hereto and made a part hereof by reference thereto and marked Exhibit A. Notice of changes in rates and charges shall be filed with the Borough Secretary. The grantee shall submit such notice of rate changes at least 30 days prior to the effective date of the adjusted rates. The Borough shall, at its option, have the opportunity to meet with the grantee to discuss rate adjustments, provided that such meetings occur at least 10 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 any agency of government or court of competent jurisdiction. Individual commercial subscriber rates shall be the same as residential subscriber rates.
Editor's Note: Exhibit A is on file in the office of the Borough Secretary and may be examined there during regular office hours.
The grantee shall pay the Borough, quarterly payments on or before the last dates in April, July, October and 90 days after the close of the year, a franchise fee equal to 5% of the gross basic subscriber revenues, including payments for converters and 5% of the pay service revenues as defined herein received for cable television operations in the Borough for the preceding calendar quarter, and 5% of any and all pay-per-view revenues within the geographical limits of the Borough when the grantee's net revenues from pay-per-view services exceed $20,000 on an annual basis, 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.
Each grantee shall keep records of account showing the date and amount of all payments received from subscribers. The Borough Secretary or other agent authorized by the Council shall have the right, at the Borough's expense, to inspect and audit the grantee's records of basic subscriber revenues at any reasonable time.
Nothing herein contained shall be construed as requiring any grantee to pay to the Borough any portion of the revenue derived from the sale of its service to subscribers residing outside the corporate limits of the Borough; provided, however, that upon annexation to the Borough 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 ordinance.
The grantee shall at all times protect and hold the Borough 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 that the Borough gives the grantee 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 insurance in an amount of not less than $1,000,000 as to any one incident, and $5,000,000 as to any one accident, and property damage insurance in an amount of not less than $500,000 as to any one incident and $1,000,000 as to any accident from the time of commencement of construction of the cable television system. In addition, the grantee shall carry workers' compensation coverage for its employees. Evidence of all such insurance coverage shall be provided to the Borough within 10 business days of its effective date of coverage.
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 Borough 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, that the interest of the Borough shall be as fully protected thereby as if the grantee had obtained individual policies of insurance.
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 this ordinance or a franchise agreement executed hereunder, it shall be only in such amounts and during such times as there is a reasonably demonstrated need therefor. The Borough 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 Borough 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.
Any formal inquiry, proceeding or other action taken or proposed to be taken by the Borough 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 Council.
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 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.
No hearing shall be held except upon 10 days' prior public notice published at least one time in a newspaper generally circulating in the Borough. 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 Borough Council prior to the hearing's commencement.
The Borough 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 ordinance, or in the event that 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 Borough, the following provisions shall apply:
Notice of violation. In the event that the Borough alleges that the grantee has not complied with the terms of this ordinance or the franchise agreement, it shall notify the grantee of the exact nature of the alleged noncompliance.
The grantee's right to cure or respond. The grantee shall have 30 days from receipt of the notice described in this section to respond to the Borough, contesting the allegation of noncompliance or 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 Borough may reject the grantee's proposed remedy and time for performance in the event that the same is not reasonable.
Public hearing. In the event that the grantee fails to respond to the Borough's notice or in the event that the alleged default is not remedied within 30 days after the Borough's initial notification (or any extension agreed to by the Borough for performance), the Borough shall schedule a public hearing to investigate the grantee's default. 10 days prior notice of the hearing shall be conducted in accordance with the Local Agency Law.
Editor's Note: See 2 Pa.C.S.A. § 105.
Enforcement. Subject to applicable federal and commonwealth law, in the event that the Borough, after hearing, determines that the grantee is in default of its franchise agreement or any of the provisions of this ordinance, the Borough may:
Foreclose on all or any part of any security provided under this ordinance, if any, including, without limitation, any bonds or other surety; provided, however, that such foreclosure shall only be in such a manner and in such amount as the Borough reasonably determines is necessary to remedy the default;
Commence an action for equitable relief, monetary damages or both;
Revoke the franchise agreement and terminate the grantee's right to operate a cable television system within the Borough; or
Seek specific performance of any provision of the franchise agreement, plus damages, if applicable.
The grantee shall not be relieved of any of its obligations to comply promptly with any provisions of this ordinance or the franchise agreement by reason of any failure of the Borough to enforce prompt compliance. The Borough's waiver of any grantee's noncompliance or default, at any time, shall not act as a waiver of any future default; provided, however, that the 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.
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 way or other Borough property, for the purpose of removing therefrom any or all of 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 Borough 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.
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 ordinance or specified in the franchise agreement to another without the Council's prior written approval, following hearing. No sale or transfer of the grantee's assets used in the performance of this franchise shall be effective until the vendee, assignee or lessee has filed in the office of the Borough 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 Council's approval shall not be unreasonably withheld and neither this section nor other sections of this ordinance 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.
If a renewal of the grantee's franchise is denied and the Borough 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 Borough 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 Borough, the grantee and the Borough may avail themselves of any rights they may have pursuant to federal or 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 Borough or the grantee.
From and after the effective date of this ordinance, it shall be unlawful for any person to construct, install or maintain within any public way in the Borough or on any other public or private property within the Borough 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 Borough, and unless and until such franchise is in full force and effect. Should any person (a grantee is a person) violate any of the terms, conditions or provisions of this ordinance or of a franchise agreement or fail to comply with any lawful provision of any Borough 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 the Borough, 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 Borough'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 ordinance and the franchise agreement, and such franchise may be terminated by the Borough.
Any cable television franchise operating within the Borough existing on the effective date of this ordinance shall be subject to its provisions. Within 30 days following adoption of this ordinance, the Borough shall undertake proceedings pursuant to § A291-5 hereof to determine renewal of any existing franchise, which franchise shall then be subject to all of the terms and conditions of this ordinance. Within 30 days of any such Council authorized renewal, the Borough and the grantee thereof shall enter into a revised cable television franchise agreement complying with the provisions of this ordinance. Failure on the part of any existing franchise holder to comply with the renewal process shall subject it to the termination provisions of § A291-17 hereof.
All prior ordinances of the Borough regulating the subject of cable television franchises are hereby repealed in their entirety. All other Borough ordinances inconsistent herewith are replaced to the extent of their inconsistency only.
If any provision, section, subsection, sentence, clause, phrase or other portion of this ordinance or the application thereof to any person or circumstance is held to be unconstitutional, illegal or in conflict by a court of competent jurisdiction or by any federal agency, including the Federal Communications Commission, the remainder of this ordinance and the application of such provisions to other persons and circumstances shall not be affected thereby, and to this end such portion of the ordinance shall be deemed a separate, distinct and independent provision and not affecting the validity of the remainder of this ordinance.
This ordinance shall become effective on January 1, 1991.