[HISTORY: Adopted by the Borough Council of the Borough of Catasauqua as indicated in article histories. Amendments noted where applicable.]
Streets and sidewalks — See Ch. 230.
[Adopted 1-3-1983 by Ord. No. 847 (Ch. VII, Part 6, of the 1962 Code)]
For the purpose of this article, the following terms, phrases and words shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory.
- The Borough of Catasauqua located in Lehigh County, Pennsylvania.
- CABLE TELEVISION SYSTEM or SYSTEM
- A system of antennas, cables, wires, lines, towers, waveguides, or other conductors, converters, equipment or facilities, designed and constructed for the purpose of producing, receiving, amplifying and distributing, audio, video and other forms of electronic or electrical signals, located in the Borough.
- Any operator of a cable television system.
- GROSS SUBSCRIBER REVENUES
- All revenues derived from charges to subscribers located within the Borough. It shall include the revenue derived from regular cable television reception service and any and all other transmissions and programs sent over said cable for which payment is received. As required by the Federal Communications Commission, gross subscriber revenues shall not include any revenues received: (a) as reimbursement of expense in the operation of any access channels; (b) as advertising payments; (c) from the leasing of cable channels; (d) from programs for which a per-channel or per-program charge is made; and (e) from furnishing other communications and nonbroadcast services either directly or as a carrier for another party or any other income derived from the system. Gross subscriber revenues shall also not include revenues received as installation charges and fees for reconnections, inspection, repairs or modifications of any installations.
- Any person, firm, partnership, association, corporation, company or organization of any kind, and the partners in partnerships and officers of corporations.
A public hearing concerning the granting of the franchises shall be held by Borough Council. Public notice of said hearing shall be given by advertisement in a newspaper of general circulation in the Borough of Catasauqua not less than 14 nor more than 30 days prior to said hearing. Said notice shall invite interested parties to participate in said hearing and comment upon the legal, character, financial, technical and other qualifications of the company to operate a cable television system in the Borough. Having received at said hearings all comments regarding the qualifications of the applicant to receive this franchise, the Borough may find that the company possesses the necessary legal, technical, character, financial and other qualifications and that the company's construction arrangements are adequate and feasible, and that therefore the Borough may grant to the company a nonexclusive franchise, right and privilege to construct, erect, operate, modify and maintain, in, upon, along, across, above and over and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the Borough, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Borough of a cable television system for the purpose of distributing television and radio signals, and other electronic impulses in order to furnish television and radio programs and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said streets, alleys, public ways and public places and all manner of easements for the purposes herein set forth but does not include or purport to include the right to utilize the private property, real or personal, of any other person or firm. It is specifically understood that the company shall place all aerial lines along Borough rights-of-way in such a manner as to be as unobtrusive as possible. Company agrees to move lines which are inappropriately placed upon request made by the Borough Manager. In sections of the Borough which have underground utilities, no aerial line shall be constructed to support a cable television system.
Franchises awarded under this article shall be granted by resolution of Borough Council.
The franchise granted herein shall terminate 10 years from the date of this grant. The Borough may renew this grant of franchise for an additional term of 10 years upon application by the company made not less than 90 days prior to expiration of the current franchise. If a renewal request is made by the company, then the Borough Council shall hold a public hearing giving notice in a newspaper of general circulation of the same concerning the past performance of the company. The Borough shall review the maintenance log required in § 155-6 of this article. After receiving public comment at the above mentioned meeting and review of all pertinent documents, Borough Council shall only renew this franchise with said company if the company's performance has proven to be satisfactory.
The company shall, during each year of operation under a franchise, pay to the Borough an amount equal to 3% of the annual gross subscriber revenues as heretofore defined. Said payment shall be annual and shall be made the first day of March for the preceding calendar year. Along with said payment, the company shall furnish the Borough with an operating report showing the company's annual gross subscriber revenues for the preceding year and providing such other information to the Borough as it shall require to verify that the report of the gross subscriber revenues is accurate.
If at any time a franchised company enters into an agreement with another municipality which contains any terms or conditions that are more favorable including, by way of example and not of limitation, the payments made to that municipality, such more favorable terms and conditions shall automatically extend to the Borough effective as of the date of the agreement with said other municipality. It shall be the duty of the company to promptly notify the Borough of any such agreement and to supply a conformed copy thereof to the Borough. If any doubt exists as to whether terms and conditions are, in fact, more favorable, it shall nonetheless notify the Borough and supply it with a copy of such agreement together with the company's written view on whether this most favored nation provision applies.
The company shall keep full, true, accurate and current books of account, which books and records shall be made available for inspection and copying by an authorized representative of the Borough at all reasonable times.
During the term of a franchise and any renewal thereof, the company shall maintain a local business office or agent for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, and similar matters. The provisions of this section shall be deemed to be complied with if company maintains a local business headquarters office within 25 airline miles of the principal coordinates of the Borough, which office may be reached by a local, toll-free telephone call, and provides the Borough Manager's office with the name, address and phone number of a person who will act as the company's agent to receive complaints regarding quality of service, equipment malfunctions and similar matters. The local office shall be open to receive inquiries or complaints from subscribers during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday. Any complaints from subscribers shall be investigated and acted upon as soon as possible, but at least within three business days of their receipt. The company shall keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said complaint and the time and date thereof. This log shall be made available for periodic inspection by the Borough.
The company shall, by appropriate means such as a card or brochure, as subscribers are connected or reconnected to the system, furnish information concerning the procedures for making inquiries and/or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed. The Borough appoints its Manager or his designated Borough employee as responsible for implementation of the complaint procedures and continuing administration of the franchise.
The company shall maintain a good cable signal at all times. The signal strength shall be in compliance with the FCC Rules and Regulations and shall have a signal to noise ratio per channel not less than 43 decibels.
The company shall pay, and by its acceptance of a franchise expressly agrees that it will pay, all damages and penalties which the Borough may legally be required to pay as a result of the negligence of the company, its agents, contractors, or subcontractors, in the installation, operation or maintenance of the cable television system authorized herein. The company shall further save harmless and defend the Borough from any liability for acts done by the company pursuant to this agreement. The Borough shall notify the company's representative within 15 days after the presentation of any claim or demand to the Borough, either by suit or otherwise, made against the Borough on account of any negligence or contract as aforesaid on the part of the company. The company further agrees as follows:
Company shall carry workmen's compensation insurance, with statutory limits, and employer's liability insurance with limits of not less than $100,000 which shall cover all operations to be performed by company as a result of this article.
Company shall carry comprehensive general liability and comprehensive automobile liability insurance with bodily injury and/or death coverage of not less than $500,000 per occurrence, and property damage limits of not less than $300,000. The Borough of Catasauqua shall be included as a named insured under said company's insurance policies stipulated above.
Company shall carry contractual liability insurance coverage for all liability which company has contractually assumed hereunder, including the indemnification obligations assumed by company in this § 155-8, the coverage under said policy to be the same as the limits set forth in the preceding Subsection B of this section.
Company's workmen's compensation, comprehensive general liability and comprehensive automobile liability insurance and all other insurance which company is obliged under the terms of this article to carry shall be written by an insurance company authorized to do business in Pennsylvania with capital and/or surplus of not less than $3,000,000. Company agrees to furnish Borough with certified copies or certificates of insurance of said policies, which shall provide that insurance shall not be cancelled unless 10 days prior written notice shall first be given to Borough. Borough shall be given a certified copy of the policy written to provide the contractual liability coverage required by Subsection C of this section.
Upon granting of a franchise to construct and maintain a community television system in the Borough, the company may enter into contracts with any public utility companies or any other owner or lessee of any poles located within or without the Borough to whatever extent such contract or contracts may be expedient and of advantage to the company for use of poles and posts necessary for proper installation of the system, obtain right-of-way permits from appropriate state, county and federal officials necessary to cross highways or roads under their respective jurisdictions to supply main trunk lines from the company's receiving antennas, obtain permission from the Federal Aviation Authority to erect and maintain antennas suitable to the needs of the system and its subscribers and obtain whatever other permits a borough, state or federal agency may require. In the construction, installation and maintenance of its system, the company will use cable and electronic devices, all of specialized and advanced design and type which shall be in conformance with the standards of the cable industry and in compliance with the rules and regulations issued by any governmental authorities. Further, the company will employ personnel with training, skill and experience in electronics and communications. Material and/or personnel of this sort may not be available to the company for its system in the event of war or other similar national emergency.
The company's system, poles, wires and appurtenances shall be located, erected and maintained so that none of them shall endanger or interfere with the lives of persons, or interfere with any improvements the Borough may deem proper to make, or hinder or obstruct the free use of the streets, alleys, bridges, easements or public property. All such wires and apparatus shall be strung in a neat and workmanlike manner and, to the extent possible, shall follow existing lines of other utilities so as to minimize the number of separate lines perceived by the casual observer. Whenever specifically requested by a subscriber, lines shall be underground. Nothing in this article shall supersede or be interpreted as allowing the company to place aboveground lines in areas of the community which are restricted to underground utilities only.
No transmission and distribution structures, lines and equipment erected by the company within the Borough shall be so located as to cause interference with the proper use of streets, alleys and other public ways and places, nor to cause interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places.
In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the company shall, at its own cost and expense and in a manner approved by the Borough, replace and restore all paving, sidewalk, driveway or surface of any street, alley or yard disturbed, in as good condition as before said work was commenced.
In the event that at any time during the period of this franchise, the Borough shall lawfully elect to alter or change the grade of any street, alley or other public way, the company, upon reasonable notice by the Borough, shall remove, and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
The company shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant or main, or sewer main or appurtenance, and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such manner as not to interfere with the usual travel on said streets, alleys and public ways.
The company shall, on the request of any person holding a building moving permit issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising, or lowering of wires shall be paid by the person requesting the same, and the company shall have the authority to require such payment in advance. The company shall be given not less than 48 hours' advance notice to arrange for such temporary wire changes.
Subject to full compliance with the provisions of the Borough's shade tree ordinance, the company shall have the authority to trim trees located within the legal right-of-way of any streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the company, all trimming to be done under the supervision and direction of the Borough and at the expense of the company. As a condition for granting approval for the cutting of any trees, if such cutting could result in liability on the part of the Borough, the Borough may require company to provide, in advance, such security as the Borough may reasonably require to save harmless the Borough from and indemnify the Borough for any such liability and, in the event, company does hereby agree to save harmless and indemnify Borough of and from any claims for damages arising out of any such cutting, whether or not Borough has requested security in advance.
The company shall provide, upon request and without charge, service to any municipal buildings owned and operated by the Borough and to any public school, volunteer fire company, and public library. This shall mean only an energized cable to such building. The cost of any internal wiring shall be borne by the institution.
It shall be the obligation of company to serve all residents of the Borough except to the extent that density of homes, adverse terrain or other factors render providing service impracticable, technically infeasible or economically noncompensatory. For purposes of determining compliance with the provisions of this section, and to provide for a reasonable and nondiscriminatory policy governing extensions of cable service within the Borough, which policy was subject to public review in the public proceeding leading to the award of this franchise, company shall extend service to new subscribers, at the normal installation charge and monthly rate for customers of that classification, under the following terms and conditions:
Where the new subscriber or nearest subscriber of a group of new subscribers is located within 200 feet of existing trunk cable; and
Where the number of homes to be passed by any new extension cable plant bears the same proportional ratio to the total amount of new cable plant as the average number of homes passed per mile of existing cable plant.
All facilities and equipment of company shall be constructed and maintained in accordance with the requirements and specifications of the National Electrical Safety Code and such applicable ordinances and regulations set forth by the Borough and/or any other local, state or federal agencies.
The company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the company to exercise its rights and perform its obligations under this franchise, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of federal and state laws.
The company shall not sell or transfer its system to another, nor transfer any rights under this franchise to another without prior written approval by the Borough.
The company shall, at all times, comply with the then current rules and regulations governing CATV operations promulgated by the Federal Communications Commission (FCC). This shall include adherence by the company to FCC rules regarding technical and engineering specifications involved in the construction of the CATV system and signal carriage therein.
The company shall not allow its cable or other operations to interfere with television reception of persons not served by the company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the Borough.
Except for service to be supplied to the Borough itself and to schools in the Borough, the company shall not, as to rates, charges, service facilities, 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; provided, however, that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled.
The company shall in no way utilize the rights and privileges given it by this article to restrict the activities of other companies or to compete unfairly with other companies or to engage in restraint of trade involving it and other companies.
If any section, subsection, sentence, clause, phrase or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.
Should any provision of this franchise be inconsistent or at variance with any rule, regulation or policy, in whole or in part, of the Federal Communications Commission or any other agency having jurisdiction, such provision shall be invalid, but the remaining provisions hereof shall not be affected thereby.