[HISTORY: Adopted by the Borough Council of the Borough of Downingtown 12-12-1990
by Ord. No. 1990-20.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch.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.
A mutually agreed to calendar date which will serve as that date
on which future basic rates may be adjusted according to an annual cycle.
The tier of service regularly provided to all subscribers that includes
the retransmission of all must-carry broadcast television signals as defined
in rules established by the Federal Communications Commission (FCC) or, in
the absence of at least three must-carry signals, any unaltered broadcast
television signals and the public, educational and governmental channels,
as required by the franchising authority pursuant to Title VI of the Cable
Communications Policy Act.
All remuneration received directly by the grantee from subscribers
in payment for regularly furnished basic cable television service, but shall
not include any taxes on services furnished by the grantee imposed on any
subscriber or user by any government, governmental unit, political subdivision,
agency or instrumentality, and collected by the grantee.
The Borough of Downingtown, also called the "franchising authority."
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.
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.
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.
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.
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.
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.
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.
All property owned, installed or used by the grantee in the conduct
of a cable television system in the Borough.
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.
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.
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.
A.
Rights granted to any grantee hereunder shall take effect
and be in full force from and after the date upon which each application is
approved by the 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.
B.
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:
(1)
Whether the grantee has or can substantially comply with
the material terms of the proposed franchise agreement, the ordinance and
all other applicable law.
(2)
Whether the quality of the grantee's service has or will
be reasonable in light of community needs.
(3)
Whether the grantee has the financial, legal and technical
ability to provide the services, facilities and equipment proposed.
(4)
Whether the grantee's proposal is reasonable to meet
the current and future cable-related community needs and interests, including
the cost of meeting them.
C.
Any proceedings undertaken by the 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.
D.
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.
A.
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.
B.
The grantee shall have the right, authority, power and
privilege to attach any of its system facilities to any existing or future
poles, towers or other electrical facilities owned by the 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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
All transmission and distribution structures, poles,
lines and equipment installed or erected by the grantee within the franchise
area shall be so located as to cause minimum interference with the proper
use of streets and with the rights and reasonable convenience of property
owners who adjoin any of said streets, and shall be subject to prior written
approval of the 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.
B.
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.
C.
The grantee shall, at its expense, protect, support,
temporarily disconnect, remove from or relocate in the same public way or
public place any property of the grantee when lawfully required by the 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.
D.
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.
E.
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.
F.
Whenever it shall be necessary for any grantee to raise,
lower or temporarily remove its lines or facilities to permit the moving of
any machinery or equipment or any building or other structure, the grantee
shall accomplish the same upon the request of any person lawfully entitled
to move 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.
G.
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.
H.
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:
(1)
Such use by the Borough does not interfere with the use
by the grantee.
(2)
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.
(3)
This hold harmless provision shall include, but not be
limited to, reasonable attorney's fees and costs and at the grantee's sole
discretion, the 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.
A.
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.
B.
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.
C.
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.
A.
The grantee shall at all times employ ordinary care and
shall install and maintain in use commonly accepted methods and devices for
preventing failures and accidents which are likely to cause damage, injuries
or nuisances to the public. All such work shall be performed in substantial
compliance with applicable Federal Communications Commission or other federal,
commonwealth or local regulations.
B.
The grantee shall keep all structures and all lines,
equipment and connections in, over, under and upon all public ways within
the franchise area in a safe and suitable condition and in good order and
repair.
A.
The grantee is hereby authorized to extend the system
within the franchise area to the extent that such extension is or may become
technically and economically feasible.
B.
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.
C.
No person in the grantee's franchise area shall be arbitrarily
refused service; but in recognition of the capital costs involved in unusual
circumstances, including, without limitation, instances when the distance
from distribution cable to connection of service to subscribers is more than
45 meters (150 cable feet) or when 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.
D.
Underground service.
(1)
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.
(2)
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.
(3)
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.
A.
The grantee shall operate and maintain the cable television
system in full compliance with the standards established and mandated by the
Federal Communications Commission (FCC).
B.
The 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.
A.
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.
B.
Whenever it is necessary to shut off or interrupt service
for the purpose of making repairs, installations or adjustments, the grantee
shall do so at such time or times as will cause the least amount of inconvenience
to its subscribers, consistent with the needs and requirements of the grantee.
C.
The grantee shall maintain a local business office 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.[1] 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.
[1]
Editor's Note: Exhibit A is on file in the office of the Borough Secretary
and may be examined there during regular office hours.
A.
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.
B.
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.
C.
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.
A.
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.
B.
Any insurance company providing coverage under the provisions
of this section must be licensed to do business in the Commonwealth of Pennsylvania.
All such insurance may contain reasonable deductible provisions not to exceed
$1,000 for any type of coverage. All investigation of claims made by any person
against the 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.
C.
The grantee shall not be initially required to obtain
or maintain bonds or other surety as a condition of being awarded the franchise
or continuing its existence. Should a bond and other surety be required to
guarantee compliance with or performance of 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.
A.
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.
B.
The notice required by this section shall state clearly
the action or proposed action to be taken, the time provided for a response
and the person or persons in authority to whom such response shall be addressed,
and such notice shall include the date, time and place of the scheduled hearing
on the proposed action, whether public participation will be allowed, and
the procedures by which such participation may be obtained. Any grantee who
is the holder or proposed holder of a franchise which is the subject of the
notice shall be a necessary party to any such hearing.
C.
No hearing shall be held except upon 10 days' prior public
notice published at least one time in a newspaper generally circulating in
the 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:
A.
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.
B.
The grantee's right to cure or respond. The grantee shall
have 30 days from receipt of the notice described in this section to 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.
C.
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.[1]
[1]
Editor's Note: See 2 Pa.C.S.A. § 105.
D.
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:
(1)
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;
(2)
Commence an action for equitable relief, monetary damages
or both;
(3)
Revoke the franchise agreement and terminate the grantee's
right to operate a cable television system within the Borough; or
(4)
Seek specific performance of any provision of the franchise
agreement, plus damages, if applicable.
E.
The grantee shall not be relieved of any of its obligations
to comply promptly with any 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.
F.
Upon expiration of its franchise, should the grantee
not have acquired an extension or renewal thereof and accepted the same, it
may have and it is hereby granted, the right to enter upon the public 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.
A.
The grantee shall not sell or transfer its plant or cable
television system to another, other than an affiliate, nor transfer any rights
acquired under this 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.
B.
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.
