Township of Whitpain, PA
Montgomery County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Supervisors of the Township of Whitpain 6-1-1981 by Ord. No. 120. Amendments noted where applicable.]
The following terms, phrases, words and their derivations, as used in this franchise, shall, unless the context plainly requires otherwise, have the following meanings:
BOARD
The Board of Supervisors of Whitpain Township, Montgomery County, Pennsylvania, or such other legally appointed or elected successor or agency constituting the governing body of the township.
COMMERCIAL SUBSCRIBER
A person who contracts to receive the signals amplified and distributed by or locally originated and distributed by the company and carried, consistent with the CATV rules of the FCC, to provide service to television sets of others, or who exhibits programs to customers or the general public.
COMMUNITY ANTENNA TELEVISION SYSTEM, CATV OR CABLE TV SYSTEM OR SYSTEM
A facility which receives and amplifies audio and visual signals by electrical impulses and distributes such signals to subscribing members of the public 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 township 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.
COMPANY
The person that is awarded a franchise by the Board to construct and operate a cable TV system, in accordance with the provisions of applicable law, within the township.
FCC
The United States Federal Communications Commission, as presently constituted by the United States Congress, or any successor agency.
FRANCHISE
The nonexclusive rights granted pursuant to this ordinance to construct a cable TV system along the public ways within all or a specified area in the township. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the township as may be required by other ordinances and laws of this township now or hereafter in effect.
FRANCHISE AGREEMENT
The written contract executed by the township and the company pursuant to this ordinance.
GROSS REVENUE
Includes all revenues derived from the supplying of any and all cable television services to persons within Whitpain Township.
PERSON
An individual, partnership, association, organization, corporation or any lawful successor, transferee or assignee of said individual, partnership, association, organization or corporation.
PUBLIC HIGHWAYS
The streets, avenues, highways, parkways, concourses, boulevards, bridges, viaducts, tunnels or any other property to which the Board can grant a franchise for any use thereof.
SALE
Includes any offer for sale, sale, exchange or barter.
STREET
Includes each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the township: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public ways and extensions and additions thereto, together with such other public property and areas as the township shall permit to be included within the definition of "street" from time to time.
SUBSCRIBER
A person who contracts to receive the signals amplified and distributed by or locally originated and distributed by the company and carried, consistent with the CATV rules of the FCC, to an individual dwelling unit.
TOWNSHIP
Whitpain Township, Montgomery County, Pennsylvania.
The ordinance is issued in accordance with the provisions required by Section 76.31 of the rules of the FCC, which ordinance is intended to effect full compliance with said section.
A. 
Request for proposal. In selecting a company pursuant to this ordinance, the township shall prepare a request for proposal (RFP) to seek bids for a cable television system to be established by franchise in the township. This request for proposal shall include information and instructions relating to the preparation and filing of proposals.
B. 
Applications for a franchise. Applications for a franchise hereunder shall be filed with the township in accordance with the filing instructions promulgated by the township and will be accompanied by the payment of a nonrefundable filing fee of $500. Such applications shall contain written information presented in the specific form required. The categories set forth are for the sole purpose of providing the Board relevant information to aid in the selection process and are not intended to be considered requirements for a successful application. Such information, when applicable, shall include but not be limited to the following:
(1) 
Name and address of applicant. The name and business address of the applicant, date of application and signature of applicant or appropriate corporation officer(s).
(2) 
Description of proposed operation. A general description of the applicant's proposed operation, including but not limited to: business hours; operating staff; maintenance procedures beyond those required in the ordinance; management and marketing staff complement and procedures; and, if available, the rules of operation for public access.
(3) 
Signal carriage. A statement of the television and radio services to be provided, including signals to be received via microwave, satellite, off-the-air and locally originated.
(4) 
Special services. A statement setting forth a description of the automated services proposed as well as a description of the production facilities to be made available by the company for the public, municipal and educational channel.
(5) 
Programming assistance. A statement describing the hours of availability, if any, that a studio, studio equipment and network personnel will be made available to educational institutions and other similar agencies for programming.
(6) 
Schedule of charges. A statement of the applicant's proposed schedule of charges.
(7) 
Applicant organization. A statement detailing and setting forth the names and addresses of all persons having a proprietary or equitable interest in the franchise, and in the event the applicant is a corporation, the names and addresses of the officers, directors and shareholders of said corporation, together with the number of shares held by each shareholder, both nominal and beneficial, owning 10% or more of the outstanding shares of the corporation's outstanding stock.
(8) 
Intracompany relationships. A statement describing all intracompany relationships of the applicant, if any, including parent, subsidiary or affiliated companies.
(9) 
Agreements and understandings. A statement setting forth any agreements and understandings, whether written or oral, existing between the applicant and any other person, firm, group or corporation with respect to any franchise awarded hereunder and the conduct of the operation thereof existing at the time of proposal submittal.
(10) 
Financial statements. All applicants shall furnish financial statements certified by independent auditors for its two latest fiscal years unless the applicant has not been in existence for at least two years, in which case the applicant shall furnish audited financial statements for such lesser periods of time covering the period that the applicant has been in existence. If the applicant is a partnership, audited financial statements shall include copies of the U.S. Partnership Return of Income (IRS Form 1965) for its latest two fiscal years or such lesser period of time as said partnership has been in existence.
(11) 
Financial projection. A ten-year-operations pro forma financial statement which shall include estimated initial and continuing plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets and annual levels of subscriber penetration. Costs anticipated for voluntary services or contributions shall, if presented, be incorporated in the pro forma financial statements as required in this ordinance, but shall be separately identified.
(12) 
Financial support. Suitable written evidence shall be supplied advising that the required funds are available to the applicant for construction and operation of the system if it is awarded a franchise. If the planned operation is to be internally financed, a corporate board resolution shall be supplied.
(13) 
Technical description. A technical description of the type of system proposed by the applicant, including but not limited to network configuration (e.g., hub), system capacity, two-way capability, studio, studio equipment and planned hours of operation.
(14) 
Engineering statement. A statement from the applicant's senior technical staff member or consultant advising that he has reviewed the Whitpain Township Code and that the applicant's planned system and operations thereof will meet all the requirements set forth herein.
(15) 
Existing franchises. A listing of all existing franchises awarded the applicant in the past three years, indicating when the franchises were issued and when the systems were constructed in each respective governmental unit, together with the name, address and phone number of a responsible governmental official knowledgeable of the applicant.
(16) 
Convictions. A statement as to whether the applicant or any of its officers or directors or holders of 10% or more of its voting stock has in the past 10 years been convicted of any crime involving moral turpitude.
(17) 
Operating experience. A statement detailing the prior cable television experience of the applicant, including that of the applicant's officers, management and staff to be associated with the proposed operation.
(18) 
Franchise renewal information. If an application is for renewal of a franchise, the proposal must include, in addition to the information required above:
(a) 
A summary of the technical, financial and programming improvements in the system since the granting of the original franchise or since the present company assumed operational control of the system.
(b) 
A statement and timetable that outlines all proposed changes, expansion or improvements in the system as to services, programming or technical specifications during the forthcoming five-year review period.
C. 
Copies. Fifteen copies of the application shall be supplied to the township, each separately bound and containing no information not specifically requested by the township. Supplementary or additional information that the applicant deems reasonable for consideration may be submitted at the same time as the application in the same number of copies. The township may, at its discretion, consider such additional information as part of the application.
D. 
Additional information. The township reserves the right to require any supplementary or additional information it deems necessary in order to make the proper analysis and determination. In this connection, the applicant agrees, if applicable, to cooperate fully any time the township desires to contact other municipalities served by the applicant in order to determine the quality of service provided and the willingness to meet the needs of their subscribers.
E. 
Criteria for evaluation of grantee. Proposals will be evaluated according to the legal, financial, character, technical and other public interest qualities of the applicant as required or suggested by the FCC. Preference may be given to applicants demonstrating the best total service package and more reasonable installment and subscriber rate schedules, the most expeditious installation schedule and to those applicants demonstrating a significant sensitivity to the knowledge of local conditions.
F. 
Decision of Board final. The decision of the Board concerning company selection is final. Applicants agree as a condition of application not to contest the Board's decision unless it is alleged that such decision is arbitrary, capricious and unreasonable or unconstitutionally discriminatory.
A. 
Construction schedule.
(1) 
Within 90 days after the execution of the franchise agreement, the company shall file with the appropriate governmental authorities and with the necessary public utility companies all applications necessary to permit the commencement of construction and operation of the cable television system and shall thereafter make diligent efforts to obtain the proper execution and delivery of such documents. The company shall report to the township every 30 days of its progress in obtaining the above.
(2) 
Within three months after execution of the franchise agreement, the company shall provide the township a construction map and schedule setting forth target dates by streets for commencement of service to subscribers. The schedule and map shall be updated by the company every 90 days.
(3) 
Within 90 days after all permits and other necessary documents have been obtained by the company, construction shall be commenced.
(4) 
Within three months after the commencement of construction, the company shall commence operation.
(5) 
Within 18 months after the commencement of construction, the company shall have completed at least 90% of construction, as measured both in miles of cable and connections to subscribers.
B. 
Approval of rates. The Board shall approve the initial rates that the company charges subscribers for installation and operation of equipment and subscriber services. No increase in rates charged to subscribers shall be made except as authorized by the Board after an appropriate public proceeding affording due process.
C. 
Complaints. The company shall, as expeditiously as possible, investigate and resolve, to the extent possible, all complaints regarding the installation and quality of service, equipment malfunctions and similar matters, and the company shall maintain a local business office or listed agent at a location within the township or within five miles thereof which subscribers may visit readily and may call without incurring toll charges so that complaints and requests for repairs or adjustments may be received. The company shall furnish each subscriber at the time service is installed written instructions that clearly set forth procedures for placing a service call or requesting an adjustment. Said instructions shall also include the name, address and telephone number of the township and a reminder that the subscriber can call or write the township for information regarding terms and conditions of the company's franchise if the company fails to respond to the subscriber's request for installation, service or adjustment within a reasonable period of time. The company shall provide same-day service response, seven days a week, for all complaints and requests for repairs or adjustments received prior to 2:00 p.m. each day. In no event shall the response time for calls received subsequent to 2:00 p.m. exceed 27 hours.
D. 
Modification of fee rules. Any modification of the provisions of said Section 76.31 of the rules of the FCC shall be incorporated into this franchise within one year of the adoption of such modification or within the time allowed by the FCC or at the time of a franchise renewal, whichever occurs first.
E. 
Poles. Where the wires and other aerial facilities of the company are erected, constructed, maintained or operated along or over public highways which contain an aerial electric or telephone pole line or a joint-use electric or pole line, the wires and other facilities of the company shall be supported by attachment to such pole line; but nothing in this subsection shall relieve the company of the duty of securing the consent to such attachment of the owner or owners of such pole line. No poles may be erected without the express written consent of the township.
F. 
Underground construction. Wires and cables shall be installed underground where all utilities are presently underground, and all installations by company of poles and cables and all other facilities relative to its operation shall be in accordance with good engineering practice and shall comply with all existing ordinances and regulations and will conform to standards of the National Electrical Safety Code.
G. 
Construction standards. The cable TV system shall be installed and maintained in accordance with accepted standards of the industry, to the effect that subscribers shall receive the highest accepted service; provided, however, that the township may reasonably require the company to transcend such standards.
H. 
Restoration. In case of disturbance of any street, sidewalk, alley, easement, public way, paved area or private property by the company or its agents, then the company shall at its own cost and expense restore same to its condition prior to said disturbance, the accomplishment of which shall be to the exclusive satisfaction of the township.
I. 
Technical standards. The cable TV system shall be capable of delivering NTSC color and monochrome signals to standard EIA television receivers, both color and monochrome, and FM receivers, without attachments, except those attachments that would be required to make more than 12 VHF channels receivable. The signals shall be distributed to the receiving sets of individual subscribers without noticeable degradation of color fidelity, picture intelligence, audio distortion or cross-channel interference.
J. 
Trees. The company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public ways and places in the township so as to prevent the branches of such trees from being in contact with the wires and cables of the company.
K. 
Channels. The company shall transmit over the cable TV system within the township the signals of all television stations whose carriage may be required by the FCC. The company shall also transmit the signals of such additional stations as best serve the interests of subscribers and which may be carried under then-current FCC rules. In addition, the company shall provide designated television channels available for public use on a nondiscriminatory basis and use by local educational authorities and local government, all as and if required by FCC rules in effect from time to time.
L. 
Persons served. The company shall provide to every person within the township all of the services offered by the company anywhere in the township. In the event that the cable necessary to reach any subscriber's premises exceeds 250 feet in length, the company may at its discretion require that subscriber to agree to subscribe for a minimum period not to exceed one year. The charges to commercial subscribers shall be negotiated between the company and the commercial subscriber.
M. 
System capability. The cable television system permitted to be installed herein shall:
(1) 
Be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of which the company is now or hereafter authorized by the FCC.
(2) 
Consist of a cable network having a minimum initial forward bandwidth in compliance with the technical standards and rules of the FCC, provided that if a reverse or feedback circuit is routed through a subscriber's premises, it shall be connected so as to permit subscriber notification and deactivation.
(3) 
Provide at least one dedicated, noncommercial access channel for use by the educational and governmental agencies within the township.
(4) 
Provide at least one channel for programming of local weather conditions and time.
(5) 
Provide one local origination access studio, with its associated production equipment, "for a mobile equipment, at the option of the township."
(6) 
Provide at least one channel each for those educational and public access uses as now or hereafter required by the FCC.
(7) 
Have a minimum capacity of 35 channels.
(8) 
Have two-directional capability.
N. 
Public-service installations. The company shall provide within the service area, without charge for installation, maintenance and service, one connection for the service offered by the company to each public school classroom, public library and such municipal buildings as the township may designate within 60 days of completion of the cable trunk line that would serve those buildings.
O. 
Emergency alert override. The company shall incorporate into its facilities the capability for an emergency override audio alert whereby a designee of the township in times of emergency may introduce an audio message on all channels simultaneously.
P. 
System technical requirements. The cable television system shall be so designed, installed and operated as to meet the following general objectives:
(1) 
Capable of continuous twenty-four-hour daily operation.
(2) 
Capable of operating over an outdoor temperature range of -20° F. to +120° F. without catastrophic failure or irreversible performance changes over variation in supply voltages from 105 to 130 volts AC.
(3) 
Capable of meeting all specifications as set forth herein over an outdoor temperature range of 0° F. to +100° F. over variations in supply voltages from 105 to 130 volts AC.
(4) 
Operated in such a manner as to avoid causing interference with reception of off-the-air signals by nonsubscribers to the network.
(5) 
Designed, installed and operated so as to comply with all applicable technical standards and regulations promulgated by the FCC.
(6) 
Designed, installed and operated so as to assure the delivery to all subscribers of standard color and monochrome signals on the FCC-designed Class I television channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the cable television system.
(7) 
Constructed and operated so as to be interconnected with cable television systems serving neighboring communities adjacent to the township.
Q. 
Interruption of service. The company shall interrupt system service after 7:00 a.m. and before 1:00 a.m. only with good cause and for the shortest time possible and, except in emergency situations, only after publishing notice of service interruption at least 24 hours in advance of the service interruption. Service may be interrupted between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance and repair without notification any night except Friday, Saturday or Sunday or the night preceding a holiday.
R. 
Equality of rates and services. The company shall not, as to rates, charges, service, rules, regulations or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage, except that the company shall offer a twenty-five-percent discount in all its rates to anyone 65 years of age or over. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscription to the network or other legitimate uses thereof, nor shall it be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classifications shall be entitled, provided that such schedules have been filed with or approved by the Board.
A. 
Review of performance. Upon receipt of an application for renewal, the Board shall review the performance of the company. After public notice and public hearing, the Board shall proceed to determine whether or not to renew the company's franchise. To determine whether or not to renew, the Board shall study the state of the art and performance of the system, programming, other services offered, cost of service and any other particular requirements set forth in this ordinance; also the Board shall consider the company's annual reports made to the township and the FCC. The Board shall consider the company's past performance in rendering subscriber services during the period of this franchise. Provision shall be made for community comment, and public meetings shall be held for that purpose. Industry performance on a national basis shall be considered.
B. 
Bids from other carriers. At the Board's discretion, it may invite bids from other cable television carriers prior to making a determination on the company's renewal application. The Board may require the company to fulfill any or all of the requirements of § A165-3 of this ordinance as part of the renewal application process.
C. 
Purchase by township. The township shall have the right to purchase the system upon expiration of this franchise. Should the township decide to purchase the system, it shall do so at a price equal to its then fair market value. In determining the fair market value of the system, only the fair market value of all tangible assets shall be considered. Under no circumstances shall any valuation be made for goodwill or any right or privilege granted by this franchise. Should a dispute arise over the determination of the fair market value of the system, the dispute shall be resolved by arbitration.
The company may enter into an agreement with any person or corporation, including telephone company and other utility companies now authorized to erect poles, overhead wires or cables and underground wires or cables, for the purpose of sharing those facilities, subject to all existing and future ordinances and regulations of the township.
The authorization granted by this ordinance is a nonexclusive franchise and the township reserves the right to grant other similar or dissimilar franchises to any other person at any time.
The franchise agreement shall be for a period of 15 years, and the company may apply for renewal for an additional term of up to 10 years by applying for renewal to the township, in writing, within six months prior to the expiration of the original term of this franchise.
The company shall pay an annual franchise fee to the township in a sum equal to 3% of the gross subscriber revenues of the company derived in the township. The company shall file with the township within 90 days after the expiration of any calendar year during which this franchise is in force a statement, certified by independent public auditors, showing in appropriate detail the total gross subscriber revenues of the company from services provided to subscribers in the township during the preceding calendar year. It shall be the duty of the company to pay to the township within 30 days after the time for filing such statement the specified sum due for the calendar year covered by such statement. A duly authorized representative of the township shall have the authority to examine the books and records of the company to verify the accuracy of the payments due hereunder. Such payment shall be in addition to any other payment, charge, permit fee, tax or bond owed to the township by the company and shall not be construed as payment in lieu of personal or real property taxes levied by the township or any other governmental authorities. The annual franchise fee percentage may be amended by the township, consistent with applicable rules of the FCC and other regulating agencies. The company shall be notified in writing at least 30 days prior to such amendment. No acceptance of any payment by the township shall be construed as a release or as an accord and satisfaction of any claim the township may have for further or additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the company. In the event that any franchise payment is not made on or before the date specified herein, the company shall pay as additional consideration:
A. 
An interest charge, computed from such due date, at the annual rate of 9% per annum; and
B. 
A sum of money equal to 2% of the amount due in order to defray those additional expenses and costs incurred by the township by reason of the delinquent payment.
A. 
Rates. The company's charges to subscribers shall be not greater than the following:
Type of Installation
Installation Charge
Monthly Charge
First TV outlet
$25.00
$11.00
Additional TV outlet
10.00
5.00
FM outlet (following TV installation)
10.00
5.00
Relocation of TV or FM outlet
10.00
0.00
B. 
Disconnection. There shall be no charge for disconnection from the network. However, if a subscriber has failed to pay properly due monthly fees or if a subscriber disconnects for seasonal periods, the company may require, in addition to full payment of any delinquent fees, a reasonable fee for reinstatement.
C. 
Other consideration. The company shall receive no consideration whatsoever for or in connection with its provision of service to its subscribers other than as set forth in this section or as filed with and/or approved by the Board.
D. 
Increase in rates.
(1) 
Any request for an increase in rates by the franchisee shall be submitted to the township and shall be supported by a showing of increased costs for the existing or any proposed services. The township shall have 60 days to review the request and hold a public hearing.
(2) 
In the event that the township and the company fail to agree on the amount or need of a rate increase within 60 days of the public proceeding set forth in Subsection D(1) above, the dispute shall be submitted to arbitration. Said sixty-day period may be extended by mutual agreement.
E. 
Antennas. The company is expressly prohibited from requiring the removal or from offering to remove or to provide any inducements for removal of any potential or existing subscriber's antenna as a condition for provision of service by the company.
F. 
Other businesses. During the period of franchise, neither the company nor any of its affiliated, subsidiary or parent organizations, officers or directors or stockholders holding 10% or more of its outstanding stock shall, within the corporate limits of the township or within 10 miles in any direction, directly or indirectly engage in the retail sale, renting or repairing of radio or television receivers, nor require, encourage or recommend to any subscriber to purchase, rent or lease radios or televisions at any specific business renting, leasing or selling radios or televisions or to utilize the services of any specific television or radio service business for the repair or maintenance of the subscriber's receivers, either radio or television, wheresoever located.
A. 
Franchise not assignable.
(1) 
The authorization granted by this ordinance shall not be transferred or assigned by the company without the express written authorization of the Board.
(2) 
Any franchise granted hereunder shall be a privilege to be held in personal trust by the original company. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, merger, consolidation or otherwise, without prior written consent of the Board.
B. 
Termination upon receivership, trusteeship or foreclosure.
(1) 
The franchise granted hereunder shall, at the option of the township, cease and terminate upon the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the franchisee, whether in a receivership, reorganization, bankruptcy or other action or proceeding.
(2) 
In the case of a foreclosure or other judicial sale of the plant, property and equipment of the franchisee or any part thereof, including or excluding this franchise, the township may serve notice of termination upon the franchisee and the successful bidder at such sale, in which event the franchise herein granted and all rights and privileges of the franchisee hereunder shall cease and terminate 30 days after service of such notice unless:
(a) 
The Board shall have approved the transfer of this franchise as and in the manner by the ordinance provided; and
(b) 
Such successful bidder shall have covenanted and agreed with the township to assume and be bound by all the terms and conditions of this franchise.
(3) 
Express approval of the Board, which shall not be unreasonably withheld, shall be required where ownership or control of more than 10% of the right of control of or interest in the franchise or the company is acquired by a person or group of persons acting in concert, none of whom already own or control 10% or more of such right of control or interest, singularly or collectively. Such acquisition shall include acquisition of either the stock or the assets of the company, or both.
The company shall indemnify, protect and save harmless the township from and against losses and physical damages to property and bodily injury or death to persons, including payments made under the Workmen's Compensation Law, which may arise out of or be caused by the erection, maintenance, presence or use or removal of attachments on poles by the company within the township or by any act of the company, its agents or employees. The company shall carry insurance to protect the township from and against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of such loss, injury or damage. The amounts of such insurance against liability due to physical damages to property shall not be less than $100,000 as to any one accident and not less than $200,000 aggregate in any single policy year, and against liability due to bodily injury or to death of persons, not less than $300,000 as to any one person and not less than $600,000 as to any one accident. The company shall also carry such insurance as it deems necessary to protect it from all claims under the Workmen's Compensation Law.
A. 
Right of revocation. The township reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this ordinance and the franchise grant:
(1) 
If the company should default in the performance of any of its obligations under this ordinance or under the franchise agreement or under such documents, contracts and other terms and provisions entered into by and between the township and the company.
(2) 
If the company should fail to provide or maintain in full force and effect the liability and indemnification coverages or the performance bond as required herein.
(3) 
If any court of competent jurisdiction, the FCC or any state regulatory body by rules, decision or other action determines that any material provision of the franchise documents, including this ordinance, is invalid or unenforceable.
(4) 
If the company should violate any orders or rulings of any regulatory body having jurisdiction over the company relative to this franchise.
(5) 
If the company fails to receive necessary FCC certification.
(6) 
If the company ceases to provide services for any reason within the control of the company over the cable television system.
(7) 
If the company attempts to evade any of the provisions of this franchise ordinance or the franchise agreement or practices any fraud or deceit upon the township.
B. 
Revocation procedure. The procedure prior to revocation shall be as follows:
(1) 
The township may make written demand that the company do or comply with any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect of the company continues for a period of 30 days following such written demand, the township may place its request for termination of the franchise upon the next regular or special Board meeting agenda. The township shall cause to be served upon such company, at least 10 days prior to the date of such Board meeting, a written notice of its intent to request such termination and the time and place of the meeting, notice of which shall be published by the township at least once 10 days before such meeting in a newspaper of general circulation within the township.
(2) 
The Board shall consider the request of the township and shall hear any persons interested therein and shall determine, in its discretion, whether or not any failure, refusal or neglect by the company was with just cause.
(3) 
If such failure, refusal or neglect by the company was with just cause, the Board shall direct the company to comply within such time and manner and upon such terms and conditions as are reasonable.
(4) 
If the Board shall determine such failure, refusal or neglect by the company was without just cause, then the Board may, by resolution, declare that the franchise of such company shall be terminated and bond forfeited unless there is compliance by the company within such period as the Board may fix.
C. 
Removal and purchase. In the event a franchise expires, is revoked or otherwise terminated, the township may order the removal of the system facilities. In the event that the township revokes this franchise pursuant to appropriate provisions of this ordinance, the township shall have the right to purchase the system at the fair market value of the tangible assets in place as affected by the revocation. This fair market value shall be determined by the township in accordance with generally accepted appraisal and accounting principles. Under no circumstances shall any valuation be made for goodwill or for any right or privilege granted by this franchise. Should a dispute arise over the determination of the fair market value of the system, the dispute shall be resolved by arbitration. In removing its plant, structures and equipment, the company shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances without affecting the electrical or telephone cable, wires or attachments. The township may inspect and approve the condition of the public ways and public places, cables, wires, attachments and poles after removal. The liability and indemnity insurance as provided herein and the performance bond provided herein shall continue in full force and effect during the period of removal and until full compliance by the company with the terms and conditions of this subsection and this ordinance. In the event of a failure by the company to complete any work required to the satisfaction of the township, the township may cause such work to be done and the company shall reimburse the township the costs thereof within 30 days after receipt of an itemized list of such costs or the township, at its option, may recover such costs through the performance bond provided by the company.
D. 
Extended operation. Upon either the expiration or revocation of a franchise, the township may require the company to continue to operate the network for an extended period of time not to exceed six months from the date of such expiration or revocation. The company shall, as trustee for its successor in interest, continue to operate the cable television system under the terms and conditions of this ordinance and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at that time. During such interim period, the company shall not sell any of the system assets nor shall the company make any physical, material, administrative or operational change that would tend to degrade the quality of service to the subscribers, decrease income or materially increase expenses without the express permission, in writing, of the township or its assignee.
E. 
Township's insistence not required. The company shall not be excused from complying with any of the terms and conditions of this ordinance or the franchise agreement by any failure of the township, upon any one or more occasions, to insist upon the company's performance or to seek the company's compliance with any one or more of such terms or conditions.
F. 
Company has no recourse. The company shall have no recourse whatsoever against the township for any loss, cost, expense or damage arising out of any provision or requirement of this ordinance or the franchise agreement or the regulation thereof.
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 FCC, 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 this ordinance shall be deemed a separate, distinct and independent provision and not affecting the validity of the remainder of this ordinance.
Any privilege claimed under a franchise by the company in any street or other public property shall be subordinate to any lawful occupancy of the streets or other public property. No privilege or exemption shall be granted or conferred by any franchise granted except those specifically prescribed herein. Any franchise granted hereunder shall be binding upon the company and all successors, lessees or assignees as may be approved by the Board.
Any right or power in or duty impressed upon any officer, employee, department or board of the township shall be subject to transfer by the township to any other officer, employee, department or board of the township.
The company awarded a franchise shall execute a franchise agreement which shall set forth the terms and provisions of the franchise. In addition to those matters required to be included by virtue of this ordinance, the franchise agreement shall contain such further conditions or provisions as may be included in the company's proposal and/or negotiated between the township and the company, except that no such conditions or provisions shall be such as to conflict with any provisions of this ordinance or other law. In case of such conflict or ambiguity between any terms or provisions of the franchise and this ordinance, the words of this ordinance shall control.
A. 
Records required. The company shall file with the township:
(1) 
An Annual Report of Cable Television Systems (FCC Form 325, Schedules 1, 2, 3 and 4).
(2) 
An annual total facilities report setting forth the physical miles of plant constructed, rebuilt or in operation during the fiscal year. Such report shall also contain any revisions to the network as-built maps filed with the township.
(3) 
The company's schedule of charges, contract or application forms for regular subscriber service, policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the company's policy in connection with its subscribers shall be filed with the township and conspicuously posted in the company's local office.
(4) 
All petitions, applications and communications of all types submitted by the company to the FCC, Securities and Exchange Commission or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the company's system shall be submitted simultaneously to the township.
(5) 
The performance bond or a certified copy thereof and written evidence of payment of required premium.
(6) 
All policies of insurance or certified copies thereof and written notice of payment of required premium.
(7) 
An ownership report indicating all persons who at any time during the preceding year did control or benefit from an interest in the franchise of 10% or more. It shall also include all creditors secured by pledges of the plant or corporate assets and all unsecured creditors in excess of $50,000 relating to the franchise operations in the township.
(8) 
All rules, regulations, terms and conditions which it has adopted for the conduct of its business.
(9) 
One copy of a report on the network's technical measurements as set forth herein.
(10) 
A summary list of all complaints received and network downtime experienced during the year.
B. 
The company shall at all times maintain:
(1) 
A record of all complaints received and interruptions or degradation of service experienced for the preceding three years.
(2) 
A full and complete set of plans, records and as-built maps showing the exact location of all equipment installed or in use in the township, exclusive of subscriber service drops.
C. 
Inspection. At all reasonable times the company shall permit examination by any duly authorized representative of the township of all franchise property, together with any appurtenant property of the company situated within or without the township. The company shall also permit any duly authorized representative of the township to examine and transcribe any and all maps and other records kept or maintained by the company or under its control concerning the operations, affairs, transactions or property of the company.
The company shall maintain throughout the period of system construction and operation a faithful performance bond in favor of the township with a surety approved by the township in the penal sum total of $100,000, conditioned upon the faithful performance by the company of its obligations under this ordinance and the franchise agreement and upon the further condition that in the event the company shall fail to comply with any law, ordinance or regulation governing the franchise or the company, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the township as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the company, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond.
A. 
Eminent domain. Nothing herein shall be deemed or construed to impair or affect in any way, to any extent, the right of the township to acquire the property of the company, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the township's right of eminent domain.
B. 
Other rights.
(1) 
There is hereby reserved to the township every right and power which is required to be herein reserved or provided by any law, and the company, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the township in its exercise of such rights or power heretofore or hereafter enacted or established.
(2) 
Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the township.
C. 
Paramount jurisdiction. If any federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted under this ordinance, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the township, the jurisdiction of the township shall cease and no longer exist.
D. 
Preemption. The preemption or preclusion of the exercise by the township of any of its police power shall not diminish, impair, alter or affect any contractual benefit to the township or the company nor any contractual obligation of the company under any franchise issued hereunder.
Whenever this ordinance or the franchise agreement sets forth any time for any act to be performed by or on behalf of the company, such time shall be deemed of the essence, and the company's failure to perform within the time allotted shall, in all cases, be sufficient grounds for the township to invoke the remedies available under the terms and conditions of this ordinance and the franchise agreement.
A. 
It shall be unlawful for any person without the expressed consent of the company to make any connection, extension or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a franchised cable television system for any purpose whatsoever.
B. 
It shall be unlawful for any person to willfully interfere or tamper with, remove, obstruct or damage any part, segment or content of a franchised cable television system for any purpose whatsoever without the prior express written consent of the township.
A. 
Lesser sanctions. Nothing shall prohibit the township, in enforcing its rules and regulations, from imposing lesser sanctions or censures for violations of provisions of the ordinance rather than revocation.
B. 
Liquidated damages. By acceptance of the franchise, the company agrees that failure to comply with the provisions of this ordinance will result in damage to the township and that it will be impracticable to determine the actual amount of such damage; and the company therefore agrees that, in addition to any other damages suffered by the township, the company will pay to the township the following liquidated damages:
(1) 
For failure to timely file required plans or information: $50 per day.
(2) 
For failure to comply with reasonable orders of the township: $50 per day.
(3) 
For willful or negligent failure to complete construction or commence operations: $50 per day.
(4) 
For willful or negligent failure to provide service in substantial compliance with the provisions of this ordinance: not to exceed $500 per day as determined by the township.
(5) 
In the event that the company disagrees with the imposition by the township of any of the above-listed liquidated damages, such damages will continue to accrue but will not be required to be paid until the company has appealed to the Board and the Board has determined that payment of such damages is appropriate.
A. 
Information from terminals. The company shall not initiate or use any form, procedure or device for procuring information or data from a subscriber's terminal by use of the network without prior valid authorization from each subscriber so affected.
B. 
Lists of subscribers. The company shall not, without prior valid authorization from each subscriber so affected, provide any list designating subscribers' names or addresses to any party other than the township.
C. 
Two-way services. The company shall not permit the installation of any special terminal equipment in any subscriber's premises that will permit transmission from subscriber's premises of two-way services utilizing aural, visual or digital signals without first obtaining written permission of the subscriber.