[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:
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.
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.
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.
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.
The United States Federal Communications Commission, as presently
constituted by the United States Congress, or any successor agency.
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.
The written contract executed by the township and the company pursuant
to this ordinance.
Includes all revenues derived from the supplying of any and all cable
television services to persons within Whitpain Township.
An individual, partnership, association, organization, corporation
or any lawful successor, transferee or assignee of said individual, partnership,
association, organization or corporation.
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.
Includes any offer for sale, sale, exchange or barter.
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.
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.
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.
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.
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:
(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.
