[HISTORY: Adopted by the Board of Supervisors of the Township of
East Bradford 12-14-2004 by Ord. No. 8-2004.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Building construction — See Ch. 45.
Streets — See Ch. 92.
Subdivision and land development — See Ch. 95.
Zoning — See Ch. 115.
[1]
Editor's Note: This ordinance also repealed former Ch. 47, Cable
Television, adopted 6-11-1985 by Ord. No. 82-1985.
This chapter shall be known and may be cited as the "East Bradford Township
Cable Television Ordinance."
A.
Upon application duly made, the Township of East Bradford
may grant the right to erect, maintain and operate cable television transmission
and distribution facilities and additions thereof in, under, over, along,
across and upon the streets, lanes, avenues, sidewalks, alleys and other public
places in the Township of East Bradford (hereinafter referred to as the "Township")
and subsequent additions thereof, for the purpose of transmission and distribution
of audio and visual impulses and television energy in accordance with the
laws and regulations of the United States of America, of the Commonwealth
of Pennsylvania and of the Township. The Township may promulgate a form for
the making of application pursuant hereto, and in the event that such a form
is promulgated, then application shall be made only on such form. Any right
granted pursuant to this chapter shall he conditioned on the faithful performance
and observance of the conditions, regulations and reservations herein specified
and shall further be conditioned upon the prompt payments of the amounts provided
for herein.
B.
Notwithstanding any other provisions or terms of this
chapter, and to the extent permitted by federal or state law, the Township
shall apply the requirements of this chapter to similarly situated users or
occupiers of the streets, lanes, avenues, sidewalks, alleys and other public
places in the Township.
Whenever used in this chapter, the following terms shall have the meanings
indicated:
The one-way transmission to subscribers of video programming, or
other programming service, and subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming service.
A.
To the extent possible, all facilities erected, maintained
or operated pursuant to this chapter shall be attached to poles already in
existence in the Township. To the extent that existing poles are insufficient
for the purposes hereof, or if anyone being granted the right hereunder (hereinafter
referred to as "licensee") is unable to negotiate agreements satisfactory
to the licensee providing for use of existing poles, the licensee shall have
the right to erect and maintain its own poles as necessary for the construction
and maintenance of its television distribution system, with the approval of
locating such poles by the Township Engineer; provided, however, that the
approval of the Township Engineer shall not be granted for the installation
of such poles when, in the professional opinion of the "Township Engineer,
the installation of such new transmission facilities underground is feasible,
considering engineering criteria only; and provided, further, that all residential
areas of the Township which are served by underground electrical utilities
shall be served only by underground transmission and distribution facilities.
Otherwise, the approval of the Township Engineer shall not be unreasonably
held.
B.
The licensee shall have the right, authority, power and
privilege to attach any of its system facilities to any existing or future
poles, towers or other electrical facilities owned by the Township in a manner
which will not interfere with the use of such poles, towers and other electrical
facilities by the Township, provided that no such attachment shall take place
unless 72 hours' prior notice has been given to the Township and the
Township has failed to object to such attachment. The Township shall not unreasonably
object to any such attachment.
C.
The licensee shall pay to the Township an annual fee
for each pole utilized by the licensee owned by the Township, which fee shall
not be less than $1.50 per pole. If the licensee shall negotiate a contract
with other entities for the use of their poles, then the annual fee payable
hereunder shall be the same as the fee payable pursuant to such negotiated
contracts, but not less than the minimum as aforesaid.
D.
In the event that the licensee negotiates a contract
fee per year per pole with other entities, providing for different fees to
each of those entities, the annual fee per pole payable to the Township for
each pole owned by the Township and utilized by the licensee shall be the
higher of the two negotiated contract fees, subject to the minimum as aforesaid.
E.
In the event that the licensee does not negotiate an
agreement for the use of the poles of other entities, the fee payable by the
licensee to the Township shall he the minimum as aforesaid, an annual fee
of $1.50 for each pole owned by the Township and utilized by the licensee.
In the event that a licensee shall use a pole for less than a full year, then
the charge for such pole shall be prorated from the day when the use of the
pole began.
F.
The Township hereby states its desire that all holders
of public licenses and franchises within the corporate limits of the Township
shall cooperate with every licensee hereunder to allow usage of existing poles
and pole line facilities wherever possible and wherever such usage does not
interfere with the normal operation of said pole and pole line, so that the
number of new or additional poles constructed in the Township shall be minimized.
G.
Each licensee shall extend to the Township, free of any
expense, joint use of any and all poles owned by any licensee for any proper
municipal purpose insofar as may be accomplished without interference with
the use and enjoyment of the licensee's own or other preexisting wires
and fixtures. The Township shall hold each licensee harmless from any and
all action, causes of action or damage caused by any action of the Township
in placing wires or appurtenances upon the poles of the licensee.
H.
Insofar as it is within the power of the Township to
grant the following right, the approval of any application made hereunder
shall grant to the licensee whose application is approved the authority to
trim trees upon and overhanging all streets, alleys, casements, sidewalks
and other public places within the Township, so as to prevent the branches
of such trees from coming into contact with the facilities of the licensee.
I.
The Township shall condition approval of any application,
either at the time application is made or at the time of renewal application,
upon the licensee making cable service available to all areas of the Township
that have a density of at least 35 dwelling units per mile of extension from
the licensee's then-existing cable distribution facilities.
J.
Each licensee shall provide to subscribers a diversity
of programming services. Any system installed, constructed, upgraded or reconstructed
shall be materially equivalent to that provided to other municipalities served
by the licensee within the County of Chester.
K.
Use of channel capacity for public, educational and governmental
("PEG") access shall be provided by the licensee in accordance with the Cable
Communications Policy Act ("Cable Act"), as amended, at Section 611, and as
further set forth below.
(1)
Upon written request of the Township, the licensee shall
nonexclusively reserve for noncommercial educational and governmental uses,
without charge, a minimum of two channels for PEG use, delivering a signal
the technical quality of which is equivalent to the technical quality of other
channels on the system. licensee and the Township may evaluate from time to
time the need for provision of additional PEG access channels. When additional
PEG access channels are deemed necessary by agreement between the Township
and the licensee after an evaluation, the licensee shall reserve the same
for PEG use. Nothing herein shall require the Township to offer any programming
described herein unless the Township so authorizes. Further, nothing herein
shall require the licensee to provide more than the use of two channels for
noncommercial PEG programming absent agreement between the Township and the
licensee. Nothing in this chapter or any prior franchise agreement is or was
intended to confer third-party beneficiary status of any member of the public
to enforce the terms of this chapter or a franchise granted to the licensee.
(2)
Because blank or underutilized PEG channels are not in
the public interest, in the event the Township elects to not fully program
the channel(s), licensee may program unused time on those channels in accordance
with the Cable Act, subject to reclamation by the Township upon no less than
60 days' notice.
(3)
Licensee does not relinquish its ownership of or ultimate
right of control over a channel location by designating it for PEG use. A
PEG access user, whether an individual, educational or government user, acquires
no property or other interest by virtue of the use of a channel so designated
and may not rely on the continued use of a particular channel number, no matter
how long the same channel may have been designated for such use.
L.
Licensee shall provide free basic and standard cable
service and free installation at a minimum of one outlet to each Township-owned
or -leased building designed for occupation and located within the Township,
as well as all Township accessory buildings or structures, if said accessory
buildings or structures are within 150 feet of the primary Township building.
(1)
Licensee shall provide the Township with one complimentary
high-speed internet connection and service at one Township building as selected
by the Township.
(2)
Licensee shall further provide free basic and standard
cable service and free installation at a minimum of one outlet to any fire
department, police department, ambulance service, or public library located
within the Township and within 125 feet of the licensee's distribution
line.
(3)
In addition, the licensee shall provide free basic and
standard cable service and free installation at one outlet to: a) each public
K-12 school; and b) each nonpublic K through 12 school that receives funding
pursuant to Title I of the Elementary and Secondary Education Act of 1965,
20 U.S.C. § 6301 et seq., as amended, not including "home schools,"
located within the Township and within 125 feet of the licensee's distribution
line.
M.
Licensee shall meet or exceed customer service standards
as set forth in Part 76 of the FCC regulations, 76 C.F.R. § 76.309,
as amended, and any other applicable FCC customer service standards or requirements.
A.
All structures, lines and equipment erected by any licensee
within the Township shall be located so as to minimize or eliminate, if possible,
interference with the use of streets, alleys, easements and other public ways
and places and with the rights and reasonable convenience of property owners,
and each licensee shall comply with all ordinances of the Township now or
hereafter in force.
B.
In case of any disturbance of pavement, sidewalk, driveway
or other surface, the licensee shall, at its own expense and in a manner approved
by the Township, remove, replace and restore all pavement, sidewalk, driveway
or surface so disturbed to as good condition as before any such disturbance.
C.
In the event that the Township shall at any time lawfully
elect to alter or change any street, alley or other public way requiring the
relocation of any of the facilities of any licensee, upon reasonable notice,
the licensee shall remove and relocate any such facilities at the licensee's
own expense.
D.
Whenever it shall be necessary for any licensee to raise
or lower its lines to permit the moving of any building or other structure,
the licensee shall accomplish the same upon the request of any person lawfully
entitled to move such building or other structure. The actual expense of raising
or lowering or temporarily removing the licensee's lines shall be paid
by the person requesting the same, and the Iicensee shall have the right to
require payment in advance of the reasonably estimated cost of such raising,
lowering or temporary removal. If it shall be necessary for Township purposes
and shall be done at the request of the Township, then such raising, lowering
or temporary removal shall be accomplished by the licensee at no charge to
the Township.
E.
All poles, lines, structures and other facilities of
the licensee in, on, over or under the streets, sidewalks, alleys, easements
and other public grounds or places within the Township shall be maintained
at all times by the licensee in a safe and appropriate condition.
A.
Nothing herein contained shall be deemed to render any
licensee a public utility except as may be otherwise provided by the laws
of the Commonwealth of Pennsylvania.
B.
Each licensee shall maintain and operate its system and
render service in accordance with this chapter and any grant of franchise
or license authorized herein.
C.
Whenever it is necessary to shut off or interrupt service
for the purpose of making repairs, installations or adjustments, the licensee
shall do so at such time as will cause the least amount of inconvenience to
its customers, consistent with the needs and requirements of the licensee.
D.
Each licensee shall maintain a customer service telephone
number, which shall be toll free to the caller for calls originating from
within East Bradford Township, for the purposes of receiving inquiries and
complaints from the licensee's customers and from the general public.
Each licensee shall provide sufficient maintenance personnel to respond to
routine service calls during normal business hours, seven days per week, except
in the case of major outages due to storms, civil unrest or acts of God. Upon
written request, each licensee shall report to the Township Manager of East
Bradford Township as to compliance with Part 76 of the FCC regulations, 76
C.F.R. § 76.309, as amended, and any other applicable FCC customer
service standards or requirements.
A.
Throughout the term of any franchise agreement granted
under this chapter, the licensee shall, at its own cost and expense, maintain
comprehensive general liability insurance and provide the Township with certificates
of insurance designating the Township and its officers, boards, commissions,
councils, elected officials, agents and employees as additional insureds and
demonstrating that the licensee has obtained the insurance required in this
section.
B.
Such policy or policies shall be in the minimum amount
of $1,000,000 for bodily injury or death to any one person, $1,000,000 for
bodily injury or death of any two or more persons resulting from one occurrence,
and $1,000,000 from property damage resulting from any one accident. Such
policy or policies shall be noncancelable except upon 30 days' prior
written notice of the Township. The licensee shall provide workers' compensation
coverage in accordance with applicable law.
The licensee shall have the right to charge and collect compensation
from all subscribers to whom it shall furnish service, but the licensee shall
not, as to rate, charges, service, facilities, rules and regulations or any
other respect, make or grant any preference or advantage to any person or
subject any person to any prejudice or disadvantage, but nothing herein contained
shall be deemed to prohibit the establishment of a graduated scale of charges
and classified rate schedules, provided that the classification of customers
shall be reasonable and any customer coming within a particular classification
shall be entitled to the same rates as any other customer coming within that
classification. Rates shall be the same for all classifications of customers
served by the licensee from similar facilities. Nothing herein contained shall
prevent any licensee from providing a preferential rate or free service to
the Township or for any public purpose.
Rights granted to any licensee hereunder shall take effect and be in
full force from and after the date upon which each application is approved
by the Township. The length of franchise awarded to licensee shall not exceed
15 years. Renewal rights shall be controlled by the Cable Act or other applicable
law.
A.
In the event the Township believes that the licensee
has not complied with the material terms of this chapter, it shall notify
the licensee in writing with specific details regarding the exact nature of
the alleged noncompliance or default. The licensee shall have 60 days from
the receipt of the Township's written notice: to respond to the Township,
contesting the assertion of noncompliance or default; or to cure such default;
or in the event that, by nature of the default, such default cannot be cured
within the sixty-day period, initiate reasonable steps to remedy such default
and notify the Township of the steps being taken and the projected date that
they will be completed.
B.
In the event of alleged noncompliance or default that
the Township asserts is grounds for revocation of the licensee's rights
to operate under a grant of license, and licensee fails to respond to the
Township's notice or the alleged default is not remedied within 60 days
or the date projected by the licensee, the Township shall schedule a public
hearing to investigate the noncompliance and determine whether revocation
of the license is warranted. Such public hearing shall be held at the next
regularly scheduled meeting of the Township that is scheduled at a time that
is no less than 10 business days therefrom. The Township shall notify the
grantee in writing of the time and place of such meeting and provide the grantee
with a reasonable opportunity to be heard. The decision of the Township shall
be in writing and shall be delivered to the licensee by certified mail. The
licensee may appeal such determination to an appropriate court, which shall
have the power to review the decision of the Township de novo and to modify
or reverse such decision as justice may require. Such appeal to the appropriate
court must be taken within 60 days of the issuance of the determination of
the Township.
C.
In addition to any other remedy available under this
chapter, any person who shall violate any material provision of this chapter
shall, upon conviction thereof, pay a fine of not more than $300 for each
offense, together with the reasonable cost of prosecution so long as such
costs are permitted by law, which fine may be collected by suit or summary
proceedings brought in the name of the Township before any District Justice.
Every day that a violation of this chapter continues shall constitute a separate
offense; however, no additional fines shall be imposed after a period of 30
days from initial notice and imposition of fine, and assessment of penalties
pursuant to this section shall be tolled upon initiation by either party of
any legal proceeding related to enforcement of this chapter. After prior written
notice from the Township setting forth with specificity the violation of the
chapter, licensee shall be afforded a sixty-day period to cure or commence
to cure the violation or violations prior to imposition of fines or penalties.
All fines and penalties collected for the violation of this chapter shall
be paid to the Township treasury.
A licensee shall, at its sole cost and expense, indemnify, hold harmless,
and defend the Township, its officials, boards, commissions, commissioners,
agents, and employees, against any and all claims, suits, causes of action,
proceedings, and judgments for damages or equitable relief arising out of
the construction, maintenance, or operation of its system, the conduct of
licensee's business in the Township, or in any way arising out of the
licensee's enjoyment or exercise of a franchise granted hereunder, regardless
of whether the act or omission complained of is authorized, allowed, or prohibited
by this chapter or a franchise agreement, provided that the Township shall
give the licensee written notice of its obligation to indemnify and defend
the Township within 10 business days of receipt of a claim or action pursuant
to this section. This provision includes, but is not limited to, the Township's
reasonable attorneys' fees incurred in defending against any such claim,
suit, or proceeding. If the licensee fully undertakes and does in fact indemnify
and defend the Township, but the Township nonetheless determines that it is
necessary for it to employ separate counsel, the costs for such separate counsel
shall be the responsibility of the Township.
A.
Each licensee shall pay to the Township a franchise fee
in an amount no less than 5% of the licensee's gross annual revenues
calculated in accordance with generally accepted accounting principles (GAAP)
and derived by the licensee from the provision of monthly basic, standard,
premium, pay-per-view, video-on-demand, digital cable, or similar services
or programming provided as cable service in the Township (as such revenues
are defined by applicable federal or state law or regulation), or, if the
Township elects in its discretion, any other percentage of gross revenues
up to the maximum amount permitted under applicable federal law. In the event
the Township elects to change the franchise fee permitted herein, it shall
do so not more than once in a calendar year, and upon 60 days' written
notice to the licensee.
B.
The franchise fee is in addition to all other taxes and
payments that the licensee may be required to pay under any federal, state,
or local law and to any other tax, fee, or assessment imposed by licensee
for use of their services, facilities or equipment.
C.
Payment of the franchise fee shall not be considered
in the nature of a tax.
D.
No acceptance of any payment by the Township shall be
construed as a release or 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 o f any other obligation of the licensee.
E.
In the event any franchise fee payment or recomputation
amount is not made on or before the date specified herein, licensee shall
pay interest charges computed from such due date, at an annual rate equal
to 5%.
F.
The franchise fee shall be paid quarterly to the Township
and shall commence as of the effective date of the franchise, unless otherwise
agreed in the franchise agreement. The Township shall be furnished at the
time of each payment with a statement verified by a representative of the
licensee showing the calculation of franchise fees in accordance with GAAP
and based on gross revenues received from the operation of the system to provide
cable service in the Township. Quarterly payments shall be made to the Township
no later than 45 days of March 30, June 30, September 30, and within 60 days
of December 31. Quarterly computation dates are the last days of the months
of March, June, September and December.
G.
The Township shall have the right to inspect and copy
the licensee's records (subject to reasonable proprietary limitations)
and the right to audit and to recompute any amounts determined to be payable
under this chapter for a period of three years from the date of payment. Audits
shall be at the expense of the Township unless the audit discloses an underpayment
in excess of 5%, in which case the costs of the audit shall be borne by the
licensee as a cost incidental to the enforcement of the license.
H.
Upon the completion of any such audit by the Township,
the Township shall provide to the Iicensee a final report setting forth the
Township's findings in detail, including any and all substantiating documentation.
In the event of an alleged underpayment, the licensee shall have 30 days from
the receipt of the report to provide the Township with a written response
agreeing to or refuting the results of the audit, including any substantiating
documentation. Based on these reports and responses, the parties shall agree
upon a "final settlement amount." For purposes of this section, the term "final
settlement amount(s)" shall mean the agreed upon underpayment, if any, to
the Township by the licensee as a result of any such audit. If the parties
cannot agree on a final settlement amount, the parties shall submit the dispute
to a mutually agreed upon mediator within 60 days of reaching an impasse.
In the event an agreement is not reached at mediation, either party may bring
an action to have the disputed amount determined by a court of law.
I.
Any final settlement amount(s) due to the Township as
a result of such audit shall be paid to the Township by the licensee within
30 days from the date the parties agree upon the final settlement amount,
Once the parties agree upon a final settlement amount and such amount is paid
by the licensee, the Township shall have no further rights to audit or challenge
the payment for that period.
Nothing herein contained shall he deemed to render any right granted
hereunder to be exclusive to any licensee.
Neither the licensee or any other person may transfer the cable system
or the franchise without the prior written consent of the Township, which
consent shall not be unreasonably withheld or delayed. No change in control
of the licensee, defined as an acquisition of 50% or greater ownership interest
in licensee, shall take place without the prior written consent of the Township,
which consent shall not be unreasonably withheld or delayed. No such consent
shall be required however, for a transfer in trust, by mortgage, hypothecation,
or by assignment of any rights, title, interest of the licensee in the franchise
or in the cable system in order to secure indebtedness, or a transfer to any
entity owned and/or controlled by licensee or licensee's parent company.
Within 30 days of receiving a request for transfer, the Township shall, in
accordance with FCC rules and regulations, notify the licensee in writing
of the information it requires to determine the legal, financial and technical
qualifications of the transferee.
