A.
Grant. In the event that the Township shall grant to
the grantee a nonexclusive, revocable franchise to construct, operate, and
maintain a cable communications system within the Township, said franchise
shall constitute both a right and an obligation to provide the services of
a cable communications system as regulated by the provisions of this chapter
and the franchise. The franchise shall include by reference those provisions
of the grantee's application for franchise that are finally negotiated
and accepted by the Township and grantee.
B.
Event of conflict. The franchise shall be granted under
the terms and conditions contained herein, consistent with the Township's
Charter and/or other applicable statutory requirements. In the event of conflict
between the terms and conditions of this chapter, the franchise, or the terms
and conditions on which the Township can grant a franchise, the Charter and/or
statutory requirements shall control.
C.
General Township ordinances. Any franchise granted by
the Township is hereby made subject to the general ordinance provisions now
in effect and hereafter made effective. Nothing in the franchise shall be
deemed to waive the requirements of the various codes and ordinances of the
Township regarding permits, fees to be paid, or manner of construction.
The franchise area shall be the entire Township, or portions thereof,
for which a franchise is granted.
For the purpose of operating and maintaining a cable communications
system in the Township, the grantee may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under, upon, across and along
the public streets and ways within the Township such wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments
and other property and equipment as are necessary to the operation of the
cable communications systems, provided, however, that the grantee complies
with all design, construction, safety, and performance provisions contained
in this chapter, the franchise agreement, and other applicable local ordinances.
In the event that a grantee chooses to utilize Township-owned conduit
or other facilities for any portion of its cable communications system, the
consideration for the use of Township conduit or other facilities shall be
at charges to be agreed upon between the parties.
No poles or pedestals shall be erected by the grantee without prior
approval of the Township with regard to location, height, type and any other
pertinent aspect. However, no location of any pole of the grantee shall be
a vested right and such poles shall be removed or modified by the grantee
at its own expense whenever the Township determines that the public convenience
would be enhanced thereby. The grantee shall utilize existing poles and conduits
where possible. The Township shall have the right, during the life of the
franchise, to install and maintain upon the poles owned by the grantee, any
wire and pole fixtures that do not unreasonably interfere with the cable system
operations of the grantee. The Township shall reimburse the grantee for any
make-ready costs. The use of grantee's poles shall be at a fair and reasonable
rate.
No cable system shall be allowed to occupy or use the streets of the
Township or be allowed to operate without a franchise.
The term of any franchise granted pursuant to this chapter shall be
stated in the franchise.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The Township specifically reserves the right to grant at any time such additional
franchises for a cable system as it deems appropriate, and/or build, operate,
and own such cable communication system or systems as it deems appropriate.
Subject to applicable law and regulation, any additional cable system franchises
granted by the Township shall, to the extent practicable, seek to create a
level regulatory playing field and shall contain similar terms and conditions,
including without limitation, provisions of public benefit with similar cost,
taking into account the size and population of the franchised areas. A grantee
is required to indemnify the Township and to hold the Township harmless from
all claims against it by third parties arising out of its compliance with
this provision to the extent that such claims are not barred by Section 635A
of the Cable Television Consumer Protection and Competition Act of 1992 (Limitation
of Franchise Authority Liability), or by any other provision of law.
Whenever the agreement shall set forth any time for an act to be performed
by or on behalf of the grantee or the Township, such time shall be deemed
of the essence and any failure of the grantee or the Township to perform within
the time allotted shall be sufficient ground for the other party to invoke
an appropriate penalty including possible revocation of the franchise, subject
to force majeure.
In any controversy or dispute under this chapter, the law of the Commonwealth
of Pennsylvania shall apply.
If any section, subsection, sentence, clause, phrase or portion of this
chapter or the franchise is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, or by any federal, commonwealth, or
local statute or regulation, such portion shall be deemed a separate, distinct
and independent provision and such holding shall not affect the validity of
the remaining portions thereof.
A.
Transfer of franchise. Any franchise granted hereunder
shall not be sold, transferred, leased, assigned or disposed of, including
but not limited to, transfer by force or voluntary sale, merger, consolidation,
receivership or other means, nor shall the control of the grantee be changed,
without the prior consent of the Township. The Township reserves the right
to impose certain conditions on the transferee as a condition of transfer
approval to ensure that the franchisee is able to meet ordinance and franchise
requirements and existing operating practices.
B.
Transfer threshold. The grantee shall promptly notify
the Township of any actual or proposed change in, or transfer of, or acquisition
by any other party of, control of the grantee. The word "control" as used
herein is not limited to major stockholders but includes actual working control
in whatever manner exercised. A transfer of ownership requiring approval shall
arise upon the disposal by the grantee, directly or indirectly, by gift, assignment,
voluntary sale, merger, consolidation or otherwise, of 25% or more at one
time of the ownership or controlling interest in the system, or 30% cumulatively
over the term of the franchise of such interests to a corporation, partnership,
limited partnership, trust or association, or person or group of persons acting
in concert. Except that no consent shall be required for any sale, transfer,
or assignment of ownership or control to an entity under common control with
the grantee, provided that prior to such transfer, the grantee provides to
the Township verifiable information to establish that such transferee under
common control has the financial, legal and technical ability to fully perform
all obligations of the franchise.
C.
Township approval. Every change, transfer, or acquisition
of control of the grantee shall make the franchise subject to cancellation
unless and until the Township shall have consented thereto, which consent
will not be unreasonably withheld. For the purpose of determining whether
it shall consent to such change, transfer, or acquisition of control, the
Township may inquire into the legal, financial, character, technical and other
public interest qualifications of the prospective controlling party, and the
grantee shall provide the Township with all required information relevant
to said inquiry. Failure to provide all information requested by the Township
as part of said inquiry shall be grounds for denial of the proposed change,
transfer or acquisition of control.
D.
Assumption of control. The Township agrees that any financial
institution having a pledge of the franchise or its assets for the advancement
of money for the construction and/or operation of the franchise shall have
the right to notify the Township that it or its designees satisfactory to
the Township will take control and operate the cable television system. Further,
said financial institution shall also submit a plan for such operation that
will insure continued service and compliance with all franchise obligations
during the term the financial institution exercises control over the system.
The financial institution shall not exercise control over the system for a
period exceeding 18 months, unless extended by the Township at its discretion,
and during said period of time it shall have the right to petition for transfer
of the franchise to another grantee. If the Township finds that such transfer,
after considering the legal, financial, character, technical and other public
interest qualifications of the applicant are satisfactory, the Township will
transfer and assign the rights and obligations of such franchise as in the
public interest. The consent of the Township to such transfer shall not be
unreasonably withheld.
E.
No waiver of Township property rights. The consent or
approval of the Township to any transfer of the grantee shall not constitute
a waiver or release of the rights of the Township in and to the streets, and
any transfer shall, by its terms, be expressly subject to the terms and conditions
of this chapter and the franchise.
F.
Transfer time periods. The Township will not approve
any transfer or assignment of the franchise prior to completion of construction
of the proposed system unless appropriate guarantees which are acceptable
to the Township are made by the transferee.
G.
Disclosure of purchase price. The Township reserves the
right to require the grantee and transferee to disclose the purchase price
of any transfer or assignment of the cable system.
H.
Signatory requirement. Any approval by the Township of
transfer of ownership or control shall be contingent upon the prospective
controlling party becoming a signatory to the franchise.
I.
Time frame for Township review. The Township shall have
120 days to act upon any request for approval of such sale or transfer that
contains or is accompanied by such information as is required in accordance
with FCC regulations and by the Township. If the Township fails to render
a final decision on the request within 120 days, such request shall be deemed
granted unless the requesting party and the Township agree to an extension
of time.
Upon completion of the term of any franchise granted under this chapter,
the Township may grant or deny renewal of the franchise of the grantee in
accordance with the provisions of the Cable Act. The grantee shall own the
cable system, but shall have no property right in the public rights-of-way
upon the completion of the franchise term including any renewals and extensions
thereof.
A.
Police powers. In accepting the franchise, the grantee
acknowledges that its rights hereunder are subject to the police power of
the Township to adopt and enforce general ordinances necessary to the safety
and welfare of the public, and it agrees to comply with all applicable general
laws and ordinances enacted by the Township pursuant to such power.
B.
Conflicts. Any conflict between the provisions of this
chapter or the franchise and any other present or future lawful exercise of
the Township's police powers shall be resolved in favor of the latter,
except that any such exercise that is not of general application in the jurisdiction
or applies exclusively to the grantee or cable communications systems which
contains provisions inconsistent with this chapter or the franchise shall
prevail only if, upon such exercise, the Township finds an emergency exists
constituting a danger to health, safety, property or general welfare and such
exercise is mandated by law.
A.
Fee established.
(1)
Because the Township finds that:
(a)
The streets of the county, commonwealth, and Township
to be used by the grantee in the operation of its system within the boundaries
of the franchise area are valuable public properties acquired and maintained
by the county, commonwealth, and Township at great expense to its taxpayers.
(b)
The grant to the grantee to said streets is a valuable
property right without which the grantee would be required to invest substantial
capital in right-of-way costs and acquisitions.
(c)
The administration of this chapter and the franchise
imposes upon the Township additional regulatory responsibility and expense.
(2)
A grantee of any franchise hereunder shall pay to the
Township a franchise fee in an amount as designated in the franchise, but
in no event less than 5% of the gross annual revenues, or the maximum amount
permitted under applicable federal, commonwealth, or local law, if such maximum
is greater than 5%. The annual franchise fee payable shall be in addition
to any other fee and shall commence as of the effective date of the franchise.
Annually, the Township shall be furnished a statement of said payment by a
certified public accountant, reflecting the total amounts of annual gross
revenues, a breakdown by type of revenue, and the above charges and computations
for the period covered by the payment.
B.
Franchise fee in addition to other tax or payment. The
Township believes that payment of the franchise fee made by grantee to the
Township shall not be considered in the nature of a tax, but shall be in addition
to any and all taxes which are now or may be lawfully required hereafter to
be paid by any federal, commonwealth, or local law. This payment shall be
in addition to any other tax or payment owed to the governments or other taxing
jurisdiction by the grantee.
C.
Acceptance by the Township. 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 chapter or for the performance of any other
obligation of the grantee.
D.
Failure to make required payment. In the event that any
franchise payment or recomputed amount is not made on or before the dates
specified herein, the grantee shall pay as additional compensation an interest
charge, computed from such due date, at the annual rate equal to the commercial
prime interest rate of the Township primary depository bank during the period
that such unpaid amount is owed.
E.
Payments to be made quarterly. The franchise fee and
any other cost or damage assessed against the grantee shall be payable quarterly
to the Township of Doylestown. The grantee shall file a complete and accurate
statement verified by a financial officer of the grantee, of all gross revenues
within the franchise area and the number of subscribers per service during
the period for which said quarterly payment is made, and said payment shall
be made to the Township no later than 45 days following the expiration of
each calendar quarter ending March 31, June 30, and September 30, and no later
than the 90 days after the calendar quarter ending December 31.
F.
The Township's right of inspection. The Township
shall have the right to inspect the grantee's income records and the
right to audit and to recompute any amounts determined to be payable under
this chapter. Audits shall be at the expense of the Township unless the audit
reveals an underpayment of more than 5% in the amount of the franchise fee
due to the Township, in which event the cost of the audit shall be borne by
the grantee. Any additional amount due the Township as a result of the audit
shall be paid within 30 days following written notice to the grantee by the
Township, which notice shall include a copy of the audit report.
A.
Grounds for 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 the ordinance and the franchise
grant:
(1)
If the grantee shall default in the performance of any
of the material obligations under this chapter, the franchise, or under such
documents, contracts and other terms and provisions entered into by and between
the Township and the grantee.
(2)
If the grantee shall fail to provide or maintain in full
force and effect the liability and indemnification coverage or the performance
bond as required herein.
(3)
If the grantee, after all established regulatory and
appellate procedures have been exhausted, shall violate any orders or rulings
of any regulatory body having jurisdiction over the grantee relative to this
chapter or the franchise.
(4)
If the grantee practices any fraud or deceit upon the
Township or cable subscribers.
(5)
The grantee's construction schedule is delayed 180
days, beyond the schedule contained in the franchise or beyond any extended
date set by the Township.
(6)
The grantee becomes insolvent, unable or unwilling to
pay its debts or is adjudged bankrupt.
(7)
Failure to restore service after 96 consecutive hours
of interrupted service substantially throughout the franchise area, except
when approval of such interruption is obtained from the Township.
(8)
Material misrepresentation of fact in the application
for or negotiation of the franchise or any extension or renewal thereof.
(9)
If the grantee ceases to provide a substantial portion
of ongoing cable services for any reason within the control of the grantee
over the cable communications system.
B.
Effect of circumstances beyond control of grantee. The
grantee shall not be declared at fault or be subject to any sanction under
any provision of this chapter in any case in which performance of any such
provision is prevented for reasons beyond the grantee's control. A fault
shall not be deemed to be beyond the grantee's control if committed by
a corporation or other business entity in which the grantee holds a controlling
interest, whether held directly or indirectly.
C.
Effect of pending litigation. Pending litigation or any
appeal to any regulatory body or court having jurisdiction over the grantee
shall not excuse the grantee from the performance of its obligations under
this chapter or the franchise. Failure of the grantee to perform such obligations
because of pending litigation or petition may result in forfeiture or revocation
pursuant to the provisions of this section.
D.
Procedure prior to revocation.
(1)
The Township shall make written demand that the grantee
comply with any such requirement, limitation, term condition, rule or regulation
or correct any action deemed cause for revocation. If the failure, refusal
or neglect of the grantee continues for a period of 30 days following such
written demand, the Township shall place its request for termination of the
franchise upon a regular Board of Supervisors meeting agenda. The Township
shall cause to be served upon such grantee at least seven days prior to the
date of such Board of Supervisors meeting, a written notice of this intent
to request such termination, and the time and place of the meeting, notice
of which shall be published by the Township Manager or his designee, at least
once, seven days before such meeting in a newspaper of general circulation
within the Township.
(2)
The Board of Supervisors shall hear any persons interested
therein, and shall determine in its discretion, whether or not any failure,
refusal or neglect by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee was
with just cause, as reasonably determined by the Township, the Board of Supervisors
shall direct the grantee to comply within such time and manner and upon such
terms and conditions as are reasonable.
(4)
If the Board of Supervisors shall determine such failure,
refusal, or neglect by the grantee was without just cause, then the Board
of Supervisors shall, by resolution, declare that the franchise of the grantee
shall be terminated unless there is compliance by the grantee within 90 days.
E.
Disposition of facilities. In the event a franchise expires
and is not renewed or extended, is revoked or otherwise terminated, the Township
may, in its sole discretion, do any of the following:
(2)
Effect a transfer of ownership of the system to another
party.
(3)
Order the removal of all or a portion of the system facilities
as required by the Township within a reasonable period of time as determined
by the Township or require the original grantee to maintain and operate its
system for a period of six months or until such further time as is mutually
agreed upon.
F.
Restoration of property. In removing its plant, structures
and equipment, the grantee 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 a condition or better as that prevailing prior to the grantee's
removal of its equipment and appliances without affecting the electrical or
telephone cable wires or attachments. The Township shall inspect and approve
the condition of the public ways and public places and cables, wires, attachments,
and poles after removal. The liability, indemnity, insurance and performance
bond as provided herein shall continue in full force and effect during the
period of removal and until full compliance by the grantee with the terms
and conditions of this subsection, this chapter and the franchise.
G.
Restoration by Township; reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§ 72-6 and 72-8 and/or Subsection F above, or any other work required by Township law or ordinance within the time as may be established and to the satisfaction of the Township, the Township may cause such work to be done and the grantee shall reimburse the Township the cost thereof within 30 days after receipt of an itemized list of such costs or the Township may recover such costs through the performance bond provided by grantee. The Township shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
H.
Extended operation. Upon either the expiration and nonrenewal
or revocation of a franchise, the Township may require the grantee to continue
to operate the system for a period of six months from the date of such expiration
or revocation, or until such time as is mutually agreed upon. The grantee
shall continue to operate the cable system under the terms and conditions
of this chapter and the franchise and to provide the regular subscriber service
and any and all of the services that may be provided at the time. The Township
shall be permitted to seek legal and equitable relief to enforce the provisions
of this section.
A.
Termination by insolvency. The franchise granted hereunder
shall, at the option of the Township, cease and terminate 120 days after the
appointment of a receiver or receivers or trustee or trustees to take over
and conduct the business of the grantee whether in a receivership, reorganization,
bankruptcy or other action or proceeding unless such receivership or trusteeship
shall have been vacated prior to the expiration of said 120 days, or unless:
(1)
Such receivers or trustees shall have, within 120 days
after their election or appointment, fully complied with all the terms and
provisions of this chapter and the franchise granted pursuant hereto, and
the receivers or trustees within said 120 days shall have remedied all defaults
under the franchise or have commenced expeditiously and in good faith to do
so in the reasonable opinion of the Board of Supervisors; and
(2)
Such receivers or trustees shall, within said 120 days,
execute an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be bound
by each and every term, provision and limitation of the franchise herein granted.
B.
Termination by judicial action. In the case of a foreclosure
or other judicial sale of the plant, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the Township may
serve notice of termination upon the grantee and the successful bidder at
such sale, in which event the franchise and all rights and privileges of the
grantee granted hereunder shall cease and terminate 30 days after service
of such notice, unless:
Equal opportunity employment shall be afforded by all operators of cable
television systems to all qualified persons, and no person shall be discriminated
against in employment because of race, color, religion, age, national origin,
sex, or physical handicap. The grantee shall comply with all equal opportunity
provisions enacted by federal, commonwealth and local authorities, as well
as all such provisions contained in this chapter and the franchise.
All notices from the grantee to the Township pursuant to this chapter
and the franchise shall be to the Township Manager or his/her designee. The
grantee shall maintain with the Township, throughout the term of the franchise,
an address for service of notices by mail. The grantee shall also maintain
a locally accessible office as specified in this chapter and the franchise,
and telephone number for the conduct of matters related to the franchise during
normal business hours. The grantee shall be required to advise the Township
of such address(es) and telephone numbers and any changes thereof.
The grantee shall not be excused from complying with any of the terms
and conditions of this chapter or the franchise by any failure of the Township
upon any one or more occasions to insist upon or to seek compliance with any
such terms or conditions.
A.
Right to purchase of the system by the Township upon
termination or expiration of the franchise.
(1)
Right to purchase. In the event the grantee forfeits
and the Township terminates the franchise for cause, pursuant to provisions
of this chapter and the franchise, or the franchise is not renewed at/or following
the normal expiration of the franchise term, the Township shall have the right,
directly or as an intermediary, to purchase the franchised cable communications
system or effect the ownership of the system to another person. Any such acquisition
or transfer shall be as specified in the Cable Act. The Township shall notify
the grantee in writing within 30 days following nonrenewal or termination
of its intent to acquire the system on its behalf or effectuate the ownership
of the system to another person. Purchase price shall be based upon the value
of the system determined pursuant to this section.
(2)
Arbitration. In the event the Township and grantee are
unable to agree upon the value of the cable communications system, either
party may require by written notice to the other that the value of the cable
communications system be submitted to arbitration in the following manner:
(a)
The Township and the grantee shall each within 15 days
after such written notice, select an arbitrator who shall be a disinterested
person with reasonable knowledge and experience relative to the subject to
be arbitrated. The two arbitrators thus selected shall immediately thereafter
select a third arbitrator who shall likewise be a disinterested person having
reasonable knowledge and experience relative to the subject to be arbitrated.
(b)
Within 30 days after appointment of all arbitrators and
upon 10 days' written notice to the parties, the panel of arbitrators
shall commence a hearing on the issue of valuation and shall receive all relevant
information from the parties.
(c)
The hearing shall be recorded and may be transcribed
at the request of either party. All hearing proceedings, debate and deliberations
shall be open to the public and at such times and places as contained in the
notice or as thereafter publicly stated, except that if two arbitrators agree,
debate and deliberations may be held in closed session.
(d)
The value of the system as determined by the arbitration panel shall be determined pursuant to § 72-24A(1) above.
(e)
Within 30 days after the close of the hearing, the panel
of arbitrators shall prepare findings and the decision agreed upon by a majority
of the panel which shall be filed with the Township and served by mail upon
the grantee. The decision of the panel regarding the value of the system shall
be final and binding upon the parties. Should there be no majority decision,
the proceedings shall become null and void and shall be started anew, unless
the parties extend by mutual agreement the time which the panel of arbitrators
has to make a decision.
(f)
Either party may seek judicial relief in the following
circumstances:
[1]
A party fails to select an arbitrator;
[2]
The arbitrators fail to select a third arbitrator;
[3]
One or more arbitrators is unqualified;
[4]
Designated time limits have been exceeded;
[5]
The panel has not proceeded expeditiously;
[6]
The decision was procured by corruption, fraud or undue
means;
[7]
There was evident partiality on the part of one or more
of the arbitrators;
[8]
The arbitration panel exceeded its authority hereunder;
and
[9]
Based upon the record, the panel abused its discretion.
(g)
In the event a court of competent jurisdiction determines
that judicial relief is appropriate to the circumstances set forth above,
the court in its discretion may order the arbitration procedure repeated and
issue findings, orders and directions.
(h)
The expenses of the arbitrators and those expenses incurred
by the panel as a whole shall be borne equally by the parties.
(3)
Notification. The purchase price shall be the value of
the system as determined by the arbitration panel.
B.
Right of inspection of records. Upon reasonable advance
notice, the Township shall have the right to inspect at any time during normal
business hours, all books, records, reports, maps, plans, financial statements,
and other like materials of the grantee relating to the operation of the cable
communications system and the enforcement of this chapter and the franchise
within the Township, including, but not limited to system records where information
is not available on a franchise area basis. The grantee shall provide such
information in such form as may be required by the Township for said records.
C.
Right of inspection of construction. The Township shall
have the right to inspect all construction or installation work performed
subject to the provisions of the franchise and upon prior notice to the grantee,
to make such tests as it shall find necessary to ensure compliance with the
terms of this chapter and other pertinent provisions of the law. The grantee
shall be afforded the opportunity to be present at and observe such testing
and shall be provided with the results of any such testing undertaken by the
Township.
D.
Right of inspection of property. At all reasonable times,
the grantee shall permit examination by any duly authorized representative
of the Township, of system facilities, together with any appurtenant property
of grantee situated within or without the Township.
E.
Right to require removal of property. Upon denial of
renewal of this chapter or the franchise, or upon its revocation or expiration
and nonrenewal, as provided for herein, the Township shall have the right
to require the grantee to remove, at its own expense, all portions of the
cable communications system required by public necessity from all streets
and public ways within the Township within six months of receipt of a written
notice from the Township.
F.
Expense reimbursement to Township. Unless otherwise provided
in the franchise agreement, the grantee shall pay the Township a sum of money
which will, when added to application fees received, reimburse all costs and
expenses incurred by it in connection with preparation of this chapter, the
initial franchise agreements, including, but not limited to, consultant fees,
attorneys' fees, publication fees, travel expenses and all other direct
costs; provided, however, that the Township shall submit a detailed schedule
of all such costs. Such payment shall be made within 30 days after the Township
furnishes the grantee with a written statement of such initial franchise expenses.
