[HISTORY: Adopted by the Board of Commissioners of the Township of Butler 6-5-1995 by Ord. No. 742. Amendments noted where applicable.]
For the purpose of this Franchise, each of the following terms shall have the meaning ascribed below. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
- ACCESS CHANNELS
- Those channels set aside for specific access purposes, including but not limited to public, educational and government channels.
- All written proposals, in whatever form, made by the grantee to the Township concerning construction, rendering of services, maintenance or any other matter pertaining to the cable television system identified herein.
- BASIC CABLE SERVICE
- Any service or tier of services which include the retransmission of local television broadcast signals, access channels and any other channels and services defined for basic cable service by the FCC.
- CABLE TELEVISION SYSTEM OR SYSTEM
- A system of poles, wires, cables, fibers, lines, underground conduits, converters, equipment, appliances and/or facilities designed, constructed or used for the purpose of production, receiving or amplifying, transmitting and distributing electronic, primarily radio and television, signals and other information or matter to or from customers of the grantee within the Township.
- The County of Butler.
- FEDERAL COMMUNICATIONS COMMISSION OR FCC
- That administrative agency of the federal government responsible for cable television regulation on a national level or its lawful successor.
- The permission, right and privilege or authority given to construct, operate and maintain a cable television system within the Township.
- GOOD CAUSE
- That set of facts and circumstances which, in an individual case, a reasonable person would adjudge to be beyond the grantee's reasonable control and which would therefore represent a justifiable excuse of performance. Depending upon the facts and circumstances, good cause may include, but shall not be limited to, delays or interruptions arising from necessary utility change, rearrangements, power outages, the fulfillment of governmental or regulatory restrictions or requirements, national emergency, uncontrollable material shortages, fire, earthquake or the elements and Acts of God.
- The person, firm or corporation to whom or to which a franchise under this agreement and ordinance is granted by the Township and the lawful successor and assignee of such person, firm or corporation.
- GROSS REVENUE
- Any and all compensation in the form of gross revenue, received directly or indirectly from subscribers or users in payment for basic and premium cable television system services received within the Township. Gross revenue shall include convertor, remote control rental fees, installation charges, and any and all charges that are billable to subscribers on the monthly bill; except that gross revenue shall not include any late fees or taxes on service furnished by the grantee imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the grantee for such governmental unit.
- LAW DIRECTOR
- The Township's solicitor or assistant.
- Any individual or association of individuals or any firm, corporation or other business entity.
- The Commonwealth of Pennsylvania.
- The surface of and the space above and below any public street, road, highway, freeway, land, path, public way or place, alley, court, sidewalk, boulevard, parkway, drive or other easement now or hereafter held by the Township for the purposes of public travel, and shall include such other easements as the rights-of-way as shall now be held or hereafter by the Township which shall, within their proper use and meaning, entitle the Township and its grantee to the use thereof for the purpose of installing or transmitting signals over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a cable television system.
- Butler Township, Butler County, Pennsylvania.
- TOWNSHIP BOARD
- The present governing body of the Township or any future board constituting the legislative body of the Township.
- TOWNSHIP DESIGNATE
- The person designated by the Township of Butler, Pennsylvania, responsible for oversight of this Franchise.
- TOWNSHIP MANAGER
- The existing or succeeding chief administrative officer of the Township or his designate.
In consideration of the within undertakings by the grantee, the Township agrees that the grantee shall have, and hereby confirms and grants unto the grantee, the right, license and privilege to construct and reconstruct, to install, maintain, repair, replace and remove, and solicit to sell to customers, subscribers, users and advertisements for, and otherwise to own, promote and operate, a cable television system within the Township.
The right, license and privilege hereby granted shall not be exclusive, and the Township reserves the right to grant a similar franchise to any person at any time.
The right, license and privilege herein granted and confirmed shall be deemed to include a continuing right to enter upon and to use and occupy the surface, subsurface and space above or below any public streets, lanes, alleys, paths, ways, bridges and viaducts within the Township, when and to the extent necessary to carry out the intent and purposes of this agreement; subject, however, to limitations and qualifications herein contained.
In exercising the right, license and privilege granted and confirmed hereby, the grantee shall be and remain subject to and shall comply with all federal, state and local laws, rules and regulations applicable to it in the conduct of the activities contemplated hereby.
In cases where existing poles or other structures, conduits or other facilities owned or leased by public utilities or other third parties having the right to permit attachment thereto or location therein or thereon of the system by the grantee are not available or are impractical for that purpose, then the proposed means of attachment, construction or conduit shall be submitted to the Township designate by drawings, plans and explanatory addenda at least 30 days before such proposed attachment, installation or construction, and shall be subject to his approval, in writing, before commencement of such attachment, installation or construction, and such approval shall not be unreasonably withheld, and the Township designate shall advise the grantee of its determination within 20 days after receipt of the grantee's proposed means of attachment, construction or conduit.
Use. Pole attachments and the construction, installation, repair and replacement of basic system hardware and the operation and removal of the system and all parts thereof by the grantee within the Township shall be conducted in such manner as to cause minimum interference with the proper use of streets, lanes, alleys, bridges and viaducts and other public places, and to cause minimum interference with the rights or reasonable convenience of the property owners, tenants or occupants who adjoin any of said streets, lanes, alleys, bridges, viaducts and other public places.
Restoration. In the event of any disturbance caused by the grantee's activities hereunder to the pavement or other surfacing as to which the Township is responsible, the grantee, at its own cost and expense, shall replace and restore all such paving, sidewalk, driveway or surface so disturbed in a good and workmanlike manner and to as functionally sound a condition as before said activities were commenced, and shall be completed within 60 days of the disturbance or such longer period as may be approved by the Township designate. All such replacement and restoration by the grantee shall be subject to the approval of the Township designate, and such approval shall not be unreasonably withheld.
Relocation. In the event that, at any time during the existence of the within right, license and privilege in the grantee, the Township elects to alter or change the grade, alignment or paved width of any street, lane, alley, bridge or viaduct or other public way, the grantee, upon notice by the Township and at its own expense, shall remove and relocate any affected part of the system within 30 days of the date of notice or such reasonable extension thereof as may be granted by the Township designate considering the circumstances of the case.
Placement of fixtures. The grantee shall not place the system or any part thereof where the same will interfere with any gas, electric, existing telephone or telegraph line or fixture, water hydrant or main, or in such manner as would interfere with the usual travel on the streets, lanes, alleys, bridges and viaducts and other public places of the Township.
Temporary removal. Upon the request of any person, firm or corporation holding a moving permit issued by the Township or other governmental regulatory agency having jurisdiction of the matter, by which permit any building or buildings, large pieces of equipment or structural materials or the like are to be moved from place to place, the grantee shall temporarily raise or lower its system as and to the extent necessary to permit the moving of such buildings, equipment, structural materials and the like, provided that the expense of such temporary raising or lowering of the system or any part thereof shall have been paid or tendered by the person, firm or corporation requesting the same. The grantee shall be given not less than 10 days' advance notice to arrange for such temporary changes to its system.
Protective barriers. Any opening in the streets or other public ways made by the grantee in the course of installation, operating, maintenance or removal of equipment, structures, facilities, apparatus and appurtenances shall be guarded and protected at all times by the placement of adequate barriers, fences or boarding or as otherwise directed by the Township designate. Whenever it is deemed necessary by the Township, the grantee shall install steel plates to allow a public way to remain usable while openings or obstructions exist.
Tree trimming. The grantee shall have the authority to trim trees which are located on or which overhang streets, alleys, sidewalks and public places of the Township to the extent that such trimming activities are minor in nature or required to be performed without delay due to the risk of danger to personnel or property damage arising by reason of the location of such trees. The grantee shall have the authority to perform all other tree-trimming activities only with the prior approval of the Township, and such approval shall not be unreasonably withheld. All trimming shall be at the expense of the grantee.
Underground requirements. In such sections, if any, of the Township in which all cables, wires and other like facilities of public utilities are required to be and are placed underground, the grantee shall place its cables, wires and other like facilities underground.
Moving of system from traffic, safety or other utilities. The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other streets or remove from the street any property of the grantee when required by the Township by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, power lines, signal lines and tracks and other types of improvements by the Township or public agencies.
Inspection. The Township shall have the right to inspect all pole attachments, installation, construction, repair and replacement of basic system hardware, and the removal of the system or any part thereof to ensure compliance with this Franchise.
Construction and maintenance of the system shall be in accordance with the provisions of the National Electric Safety Code of the National Board of Fire Underwriters, and such other applicable laws of the State of Pennsylvania, County of Butler and regulations of the Township which may be lawfully in effect from time to time.
All structures, lines, equipment and connections in, over, under and upon the streets of the Township, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.
In consideration of the right, license and privilege granted hereby and in order to defray any costs and expenses of the Township in the execution, delivery, performance and administration of this Franchise, the grantee shall pay to the Township, by the 30th of the month, an amount equal to 4% of the gross receipts of the grantee for the previous month. The Township reserves the right to increase or decrease the franchise fee upon 90 days' written notice to the grantee. Any such increase or decrease shall comply with all federal and state regulations.
Not later than 60 days after the close of each fiscal month of the grantee during the term of this Franchise, the grantee shall file with the Township designate, a written report, certified by the grantee's chief accounting officer, setting the amount of the gross revenue as defined in § A304-1.
The Township shall have the right to inspect and audit the grantee's records from which the payments hereunder are computed and to recompute the amount of such payments to correct errors in the computation and reporting of same and to correct errors in the amount due the Township disclosed by the audit.
All subscriptions for services under this Franchise shall be on a voluntary basis and may be terminated at any time by the subscriber. Under no circumstances shall the grantee offer services utilizing a "negative option" marketing plan.
The grantee, at all times, shall provide all subscriber services and to the extent required to be provided by applicable deferral and state rules and regulations from time to time in effect.
The grantee shall provide channel space for the carriage of public, educational and governmental access in accordance with the applicable laws.
Additional services may, at the sole discretion of the grantee, be provided by the grantee, including services for which a per-program, per-service or per-channel charge is made, consistent with applicable federal and state rules and regulations.
Upon the annexation of any territory to the Township, the portion of any utility that may be located or operated within such territory and upon the streets, alleys or public grounds thereof shall thereafter be subject to all the terms of this grant as though it were an extension made thereunder.
Grantee shall, subject to the provisions of this Franchise, be required to permit any noncommercial dwelling to have access to the services of the grantee, subject only to the payment of applicable rates for services. The service shall be furnished to all paying customers without unlawful discrimination as to rates and services within the Township or any future area annexed to the Township. The grantee shall permit any person to have access to the services of the grantee within 90 days of the date electric services become available to a person in areas of new construction with the Township.
The grantee shall provide complimentary basic cable television service to all public schools, libraries, police and fire stations, and any other public building so designated by the Township. This service includes the free installation of a single outlet to be located at a Township-designated location within each building and regular monthly cable service.
The grantee shall investigate and resolve all subscriber complaints regarding the quality of service, equipment malfunctions and similar matters expeditiously and in accordance with the following procedure:
The grantee shall have qualified personnel available during normal working hours to investigate and resolve subscriber complaints;
The grantee shall maintain a telephone answering service during times other than normal business hours with a qualified technician on call 24 hours a day to respond to emergencies;
Upon notification of a service complaint, the grantee shall dispatch a qualified employee to investigate the complaint and adjust, repair or replace grantee equipment as necessary to resolve the complaint. The grantee shall not be responsible for malfunctions of any television receivers or other equipment owned or operated by any subscriber;
All complaints shall be investigated and resolved within 24 hours after initial notification to the grantee (absent unusual circumstances); and
The grantee shall maintain a service log in which an entry shall be made of each complaint, the date of notification thereof, the nature of the complaint and the means by which it was resolved. The Township reserves the right to inspect that log at any time.
In the construction, maintenance and operation of the system, the grantee shall, at a minimum, at all times, fully comply with technical standards which have been or which hereafter may be adopted by the Federal Communications Commission, including (without limitation), if applicable, requirements relating to channel capacity, bandwidth and periodic testing. Further, should any federal, state or local governmental unit with jurisdiction establish technical standards that exceed those of the Federal Communications Commission, the grantee will comply therewith when and to the extent required by such governmental unit, unless to require the grantee to do so would be held invalid by the Federal Communications Commission or a court of administrative tribunal of competent jurisdiction. The technical quality of the service provided by the grantee shall be sufficient to provide subscribers with uniformly high quality television reception. The grantee shall maintain the system in good repair and working order at all times.
Rates and charges for installation, monthly service fees, equipment rental, additional outlets, moves, changes and any other rates charged by the grantee to its subscribers and users shall be regulated according to current and subsequent Federal Communications Commission rules and regulations.
The grantee shall offer the services of the system within the Township on terms and conditions which are uniform and nondiscriminatory, except as otherwise set forth herein, to the fullest extent possible.
The grantee shall not, as to rates, charges, service, service facilities, rules, regulations, or in any other respect, make or grant unlawful undue preference or advantage to any person, nor subject any person to any unlawful prejudice or disadvantage, provided that nothing in this Franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled. Connection and/or service charges may be waived or modified during promotional campaigns of the grantee.
The grantee shall, at all times during the term of this Franchise, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy protecting its representatives, officials and employees against liability for loss or damage for personal injury, death and property damage occasioned by the operations of the grantee under this Franchise, with minimum liability limits of:
Such policy of insurance, and any certificate evidencing the same, shall name the Township, its representatives, officials and employees as additional insureds, and shall also provide that 30 days' prior written notice of intention not to renew, cancellation or material change be given to the Township.
The right and privilege herein granted shall take effect and be in force from and after November 1, 1994, and shall continue in force and effect for a period of 15 years from the effective date of this Franchise. Upon the expiration of said period, and provided that the grantee has complied with the terms and conditions hereof, the grant and provisions hereof may be renewed under the provisions of the Cable Communications Act of 1984, Section 626.
It is understood that this Franchise sets forth the minimum requirements to be performed by the grantee. Therefore, in the event and to the extent that the terms and provision hereof shall be superseded and preempted by or become inconsistent with state law or federal law (including rules and regulations promulgated by the Federal Communications Commission, then and in each such event, it shall be the right of each party hereto to take such action (including the execution of delivery of written instruments and the adoption of ordinances and resolutions) within 60 days after such event as shall be reasonably necessary and may be reasonably requested to so amend or modify, in writing, this Franchise and to preserve the written contract for rights and benefits of the grantee and fulfill the intent and purposes of this Franchise.
If any subsection, sentence, clause, phrase or portion of this Franchise is for any reason held invalid or unconstitutional by any court or administrative tribunal of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.
Notwithstanding any provision of this Franchise to the contrary, the Township agrees that in the event of any ambiguity with respect to the terms and conditions of this Franchise, or dispute as to meaning, the Township shall, in conjunction with the grantee, make a good-faith effort to establish the meaning of such term of condition in a manner consistent with the parties' original intent of the language.
The grantee shall not engage in the business of selling, leasing or repairing television or radio receivers in connection with the operation of its cable television system; nor shall the grantee and its employees race or attempt to direct its subscribers to deal with any particular firm or person engaged in such business.
In the event that the grantee's performance of any of the terms, conditions, obligations or requirements of this Franchise is prevented or impaired due to any cause beyond its control or not foreseeable, such inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result thereof, provided that the grantee has notified the Township, in writing, within 30 days of its discovery of the occurrence of such an event. Such causes beyond grantee's control or not foreseeable shall include but shall not be limited to acts of God, civil emergencies and possible labor unrest or strikes including by telephone or power company owners of said poles.
In the event that the grantee shall violate any of the terms or provisions of this Franchise, such shall be cause for forfeiture of the right and privilege granted to be grantee by this Franchise and all rights hereunder; provided, however, that the Township shall first give written notice to the grantee of such alleged violation or failure on the part of the grantee and the continuation of the grantee of such violations, failure or default for a period of 15 days, unless the public interest requires a more prompt compliance by the grantee. Further, the grantee reserves the right to terminate cable television service and this Franchise after six months' written notice to the Township and the subscribers or until the replacement service or Franchise is granted, whichever shall first occur.
In the event that the Township enters into a franchise, permit, license, authorization or any other agreement of any kind with any other person or entity other than the grantee for the purpose of constructing or operating a cable television system or providing Cable Television Service to any part of the franchise area, and such Franchise, permit, license, authorization, or agreement contains terms which are more favorable than this Franchise, the grantee may request that the Township Commissioners amend this Franchise, so as to give the grantee the benefit of any such more favorable terms. The Township shall rule on such request using its reasonable discretion.
This Franchise shall bind and inure to the benefit of the Township and the grantee, and their respective successors and assigns; provided, however, that without the written consent of the Township, which consent shall not be unreasonably withheld or delayed, the grantee shall not assign the right, license or privilege herein granted to any person, firm or corporation other than a person, firm or corporation affiliated with it. The terms and provisions of this Franchise may not be amended or modified, by ordinance or otherwise, except as agreed upon, in writing, by both parties hereto.
If any section, subsection, clause or phrase of these regulations is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions; and each section, subsection, clause or phrase hereof would have been prepared, proposed, adopted, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
All ordinances or parts of ordinances or regulations in conflict with these regulations or inconsistent with the provisions hereof, are hereby repealed to the extent necessary to give these regulations full force and effect.
These regulations are necessary for the immediate preservation of the public health, safety, morals and general welfare and shall be effective immediately upon passage and publication.