A.
In the event that the borough shall grant to a grantee
a nonexclusive revocable franchise to construct, operate and maintain a cable
communications system within the borough, 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 a franchise agreement.
C.
Any franchise granted by the borough is hereby made subject
to the general ordinances 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 borough regarding permits, fees to be
paid or manner of construction.
D.
State-of-the-art continuing obligation.
(1)
General requirement. Throughout the term of any franchise
agreement, the franchisee shall construct, operate, maintain and upgrade the
cable communications system in order to ensure that it continuously conforms
to the state of the art in accordance with the requirements set forth herein
below. In addition, the franchisee, either on its own initiative or at the
reasonable request of the borough, shall participate in or undertake experiments,
tests and other activities to enhance and advance the state of the art of
cable communications systems technology.
(2)
State-of-the-art report. A franchisee shall provide to
the borough, in a form satisfactory to the borough, at the borough's
request, but no more often than once every year, a report setting forth the
franchisee's review and assessment of the current state of the art of
cable communications systems and its plans, if any, for upgrading the system
to conform to the state of the art. The report shall address, at a minimum,
technological advances making possible enhanced signal quality, publicly available
equipment for the receipt of services or greater channel capacity and interactive
systems; a list of each jurisdiction in which new technologies have been or
are being used and a description of the experience those jurisdictions have
had with such new technologies; an assessment of the costs associated with
implementing such new technologies into the system; the franchisee's
activities to enhance or advance such technology in connection with the system
and any other cable communications system or systems operated by the franchisee
or any affiliated person in the borough or elsewhere and the franchisee's
compliance with and any modifications with respect thereto; an assessment
of the need to scramble signals distributed over the system in order to prevent
theft of service (such assessment to investigate alternatives to scrambling
of signals and include a cost/benefit analysis of both scrambling and such
alternatives that takes into account significant costs and benefits both to
the franchisee and subscribers); a discussion of additional technological
advances anticipated during the remainder of the term of the franchise, along
with a projection of the costs and timetable for the franchisee offering such
advances as part of or over the system; a discussion of what improvements
the franchisee anticipates making in its customer service facilities, equipment,
systems and operations during the remainder of the term of the franchise,
along with a projection of the costs and timetable for the implementation
of such improvements; a description of any technical experimentation which
the franchisee or any affiliated person anticipates undertaking during the
remainder of the term of the franchise; an assessment of the compatibility
of the system with subscribers' televisions and video cassette recorders,
the franchisee's compliance with the rules and regulations promulgated
by the FCC pursuant to Section 624A of the Cable Act (47 U.S.C. § 544a)
and any experimentation the franchisee is making to enhance such compatibility;
and, generally, the steps the franchisee or any affiliated person is undertaking
to continuously construct, operate, maintain and upgrade the system in accordance
with the state of the art. The state-of-the-art report submitted by a franchisee
may be only one resource that the borough will consider in evaluating the
franchisee's obligation pursuant to the terms and conditions of the ordinance
to continuously construct, operate, maintain and upgrade the system in accordance
with the state of the art, and the borough may commission third parties, as
necessary, to ascertain the current state of the art in cable communications
systems generally.
(3)
Procedures for maintaining state of the art. Upon receiving
the report from a franchisee required pursuant to this section of the ordinance,
the borough will evaluate such report and assemble any additional data necessary
to ascertain whether the franchisee's system or any aspect thereof needs
to be upgraded so that it meets the state-of-the-art requirement set forth
herein.
(4)
Directive. Upon completing the evaluation contemplated
by this section of the ordinance and after providing notice to a franchisee
and an opportunity for the franchisee to comment, the borough may issue a
reasonable directive to the franchisee to upgrade the system so as to incorporate
state-of-the-art features. Within 45 days after receipt of such directive,
such franchisee shall submit plans, as specified by the borough, describing
how it intends to complete such upgrade. Upon approval of such plans by the
borough, the franchisee shall commence and diligently pursue implementation
of the required upgrade.
(5)
"State-of-the-art" or "state of the art," as applicable,
means that level of technical or service performance, capacity and capability
(including but not limited to plant or other equipment; access channel and
other production equipment or facilities; construction techniques; customer
service; facilities, equipment, systems and operations; and performance standards)
which have been developed and demonstrated in the cable industry or any other
comparable industry that provides services to the public under similar conditions;
to be workable and economically and technically feasible and viable from time
to time through the term of the franchisee.
(6)
"Economically and technically feasible and viable" means
capable of being provided through technology which has been demonstrated in
actual applications (not simply through tests or experiments) to operate in
a workable manner and in a manner which has a reasonable likelihood of generating
additional revenues or other financial benefits for a system, when measured
over the term of the franchise.
For the purpose of operating and maintaining a cable communications
system in the borough, a 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 borough 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 laws, including
but not limited to the Federal Technical Performance Standards, National Electrical
Safety Code (current edition), and the power company and telephone company
pole contract standards.
No poles shall be erected by a grantee without prior approval of the
borough 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 borough determines that the public convenience would be enhanced
thereby. The grantee shall utilize existing poles and conduits, where possible.
The borough shall have the right, during the life of the franchise, to install
and maintain free of charge upon the poles owned by the grantee any wire and
pole fixtures that do not unreasonably interfere with the operations of the
grantee.
No cable communications system shall be allowed to occupy or use the
streets of the borough or be allowed to operate without a franchise.
The term of any franchise as granted pursuant to this chapter shall
be specified in the franchise agreement in the discretion of the borough.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The borough specifically reserves the right to grant at any time such additional
franchises for a cable communications system as it deems appropriate and/or
build, operate and own such cable communications system or systems as it deems
appropriate.
A.
Transfer of franchise. No franchise granted hereunder
shall be transferred and no control or controlling interest in any system,
franchise or franchisee shall be transferred without the prior written consent
of the borough and then only under such reasonable conditions as the borough
may establish and only if in compliance with Section 617 of the Cable Act
(47 U.S.C. § 537) and regulations promulgated by the FCC to implement
Section 617.
B.
The franchisee shall promptly notify the borough by written
petition of any proposed transfer. The petition shall fully describe the proposed
action and shall be accompanied by a justification for the action and, if
applicable, an argument as to why such action would not involve a change in
control or controlling interest. The borough shall notify the franchisee as
soon as all of the information required by the FCC, the franchise agreement,
this chapter and all applicable state and local law has been received by the
borough and that therefore the petition is complete, after which the borough
shall take action within 120 days following the date such notice is provided
by the borough, pursuant to Section 617(e) of the Cable Act.
C.
For the purpose of determining whether it shall consent
to a transfer, the borough may inquire, with the assistance of the grantee,
into the legal, financial, character, technical, customer service and operations
qualifications of the prospective controlling party and the effect that the
proposed transfer and sale price may have on rates being paid by subscribers.
Failure to provide all information reasonably requested by the borough as
part of said inquiry shall be grounds for denial of the proposed transfer.
If the borough finds the results of this inquiry are satisfactory, its consent
to such transfer shall not be unreasonably withheld.
D.
Assumption of control. 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 borough that it or its designees satisfactory to the borough will take
control and operate the cable television system. Further, said financial institution
shall also submit a plan for such operation that will ensure 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 one year, unless
extended by the borough 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 borough finds that such transfer, after considering the legal,
financial, character, technical, customer service and operations qualifications
of the applicant are satisfactory and that the proposed transfer and sale
price will not result in a rate increase to subscribers, the borough will
transfer and assign the rights and obligations of such franchise as in the
public interest. The consent of the borough to such transfer shall not be
unreasonably withheld.
E.
The consent or approval of the borough to any transfer
of the grantee shall not constitute a waiver or release of the rights of the
borough 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 agreement.
F.
The borough reserves the right to review the purchase price of any transfer or assignment of the cable television system. Any negotiated sale value which the borough deems unreasonable will not be considered in the rate base for any subsequent request for rate increases, if permitted by applicable law and § 39-16 of this chapter.
G.
Any approval by the borough of transfer of ownership
or control shall be contingent upon the prospective controlling party becoming
a signatory to the franchise agreement.
H.
Except as otherwise provided in Subsection D above, the borough reserves the right of first purchase in any transfer of the system. Should the borough exercise this option, it shall do so within 30 days of notification and thereafter shall make payment therefor under the same terms and conditions as the proposed transferee or as the parties might otherwise agree.
I.
The transfer of any franchise or the transfer of control or controlling interest in any system, franchise or franchisee without the prior written consent of the borough shall be deemed to be an abandonment of the system by the franchisee under § 39-33C of this chapter and shall entitle the borough to all of the rights set forth under § 39-33C.
A.
Because the borough finds that the streets of the county,
state and borough 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, state and borough at great expense
to its taxpayers; and 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; and the administration of
this chapter and the franchise imposes upon the borough additional regulatory
responsibility and expense; and the presence of the grantee and its facilities
places additional burdens upon the Borough Police and Road Departments and
the volunteer fire company serving the area which is supported by the borough,
a grantee of any franchise hereunder shall pay to the borough a franchise
fee in an amount as designated in the franchise agreement up to the maximum
amount permitted under applicable federal, state or local law. The present
maximum franchise fee allowable is 5% of gross annual revenues.
B.
In the event that any franchise fee payment or recomputed
amount is not made on or before the dates specified in the franchise agreement,
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 borough primary depository bank during the period that such unpaid
amount is owed.
C.
The franchise fee shall be payable as specified in the
franchise agreement and shall commence as of the effective date of the agreement.
The borough shall be furnished at the time of each payment with a statement
certified by the grantee's chief financial officer reflecting the total
amounts of gross revenues for the period conveyed by the payment.
D.
The borough 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 for a period of five years from the date
of payment. Audits shall be at the expense of the borough unless the audit
discloses an underpayment in any one year of 5% or more, in which case the
costs of the audit shall be borne by the grantee. Any additional amount due
the borough as a result of the audit shall be paid within 30 days following
written notice to the grantee by the borough, which notice shall include a
copy of the audit report unless written notice of disagreement is filed by
the grantee with the borough within such time.
A.
Grounds for revocation or acceleration of expiration
date. The borough reserves the right to accelerate the expiration of the franchise
term and/or 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 agreement:
(1)
If the grantee shall default in the performance of any
of the material obligations under this chapter or under such documents, contracts
and other terms and provisions entered into by and between the borough and
the grantee.
(2)
If the grantee shall fail to provide or maintain in full
force and effect the liability and indemnification coverage or any performance
bond or security fund as required.
(3)
If the grantee shall violate any lawful 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 upon the borough or
any subscriber.
(5)
If it is determined that the grantee underpaid its franchise
fee by 15% or more for any year.
(6)
If the grantee's construction schedule is delayed
later than the schedule contained in the franchise agreement or beyond any
extended date set by the borough.
(7)
If there is an occurrence of any event which may reasonably
lead to the foreclosure or other similar judicial or nonjudicial sale of all
or any material part of the system, including but not limited to any of the
following events:
(a)
Default under any loan or any financing arrangement material
to the system or the obligations of the grantee under the franchise agreement;
(b)
Default under any contract material to the system or
the obligations of the grantee under the franchise agreement; or
(c)
Termination of any lease or mortgage covering all or
any material part of the system.
(8)
If in regards to any grantee:
(a)
A grantee shall suspend or discontinue its business,
shall make an assignment for the benefit of creditors, shall fail to pay its
debts generally as they become due, shall become insolvent (however such an
insolvency may be evidenced), shall be adjudicated insolvent, shall petition
or apply to any tribunal for, or consent to, the appointment of or taking
possession by a receiver, custodian, liquidator or trustee or similar official
pursuant to state or local laws, ordinances or regulations of or for it or
any substantial part of its property or assets, including all or any part
of this system;
(b)
A writ or warrant of attachment, execution, distraint,
levy, possession or any similar process shall be issued by any tribunal against
all or any material part of a grantee's property or assets;
(c)
Any creditor of a grantee petitions or applies to any
tribunal for the appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator or similar official for the grantee or of any substantial
parts of the assets of the grantee under the law of any jurisdiction, whether
now or hereinafter in effect, and an order, judgment or decree is entered
appointing any such trustee, receiver, custodian, liquidator or similar official
or approving the petition in any such proceedings; or
(d)
Any order, judgment or decree is entered in any proceedings
against a grantee decreeing the voluntary or involuntary dissolution of the
grantee.
B.
Effect of circumstances beyond control of grantee. Not
withstanding any other provision of this chapter or the franchise agreement,
a grantee shall not be liable for delay in performance of or failure to perform
in whole or in part its obligations pursuant to the franchise agreement or
this chapter, due to strike, war or act of war (whether an actual declaration
of war is made or not), insurrection, riot, act of public enemy, accident,
fire, flood or other act of God, sabotage or other events, where a grantee
has exercised all due care in the prevention thereof and to the extent that
such causes or other events are beyond the control of the grantee and such
causes or events are without the fault or negligence of the grantee. In the
event that any such delay in performance or failure to perform affects only
part of a company's capacity to perform, the company shall perform to
the maximum extent that it is able to do so and shall take all steps within
its power to correct such cause or causes. In correcting such cause or causes,
a grantee shall take all reasonable steps to do so in as expeditious a manner
as possible. A grantee shall notify the borough, in writing, of the occurrence
of an event covered by this subsection within five business days of the date
upon which the grantee learns of its occurrence. Shortage or unavailability
of equipment from suppliers shall not be deemed to be beyond the control of
the grantee in regards to any construction delays.
C.
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
agreement. 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. The borough shall comply with any related
court orders.
D.
Procedure prior to revocation.
(1)
The borough shall make written demand that the grantee
do so comply with any such requirement, limitation, term, condition, rule
or regulation or correct any action deemed cause for revocation. After written
demand is made, the borough may place its request for revocation of the franchise
upon a regular Borough Council meeting agenda. The borough shall cause to
be served upon such grantee, at least seven days prior to the date of such
Borough Council meeting, a written notice of this intent to request such revocation
and the time and place of the meeting, notice of which shall be published
by the borough once, at least seven days before such meeting, in a newspaper
of general circulation within the borough.
(2)
The Borough Council 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 determined by the Borough Council, the Borough Council
shall direct the grantee to comply within such time and manner and upon such
terms and conditions as are reasonable.
(4)
If the Borough Council shall determine such failure,
refusal or neglect by the grantee was without just cause, then the Borough
Council may, by resolution, declare that the franchise of the grantee shall
be revoked and the performance bond forfeited.
E.
Disposition of facilities. In the event that a franchise
expires, is revoked or otherwise terminated, the borough may, in its sole
discretion, do any of the following:
(1)
Order the removal of the system facilities from the borough
within a reasonable period of time as determined by the borough.
(2)
Require the grantee to maintain and operate its system
for a period of up to 18 months or such further time as may be mutually agreed
upon. During any time the grantee continues to operate the system, it shall
do so pursuant to the terms of this chapter and its franchise agreement and
shall be entitled to the revenues from the system.
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 the prevailing prior to the grantee's
removal of its equipment and appliances without affecting the electrical or
telephone cable wires or attachments. The borough 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 agreement.
G.
Restoration by borough; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection E or F of this section or any other work required by borough law or ordinance within the time as may be established and to the satisfaction of the borough, the borough may cause such work to be done and the grantee shall reimburse the borough the cost thereof within 30 days after receipt of an itemized list of such costs or the borough may recover such costs through the performance bond or letter of credit provided by the grantee. The borough 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 borough, 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 similar 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 agreement and the receivers or
trustees within said 120 days shall have remedied all defaults under this
chapter or the franchise agreement; 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 agreement
and the ordinance.
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 borough 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:
All notices from grantee to the borough pursuant to this chapter and
the franchise agreement shall be to the Borough Manager or Borough Secretary
or his designee. The grantee shall maintain with the borough, throughout the
term of the franchise, an address for service of notices by mail. The grantee
shall also maintain with the borough a local office and telephone number for
the conduct of matters related to the franchise during normal business hours.
The grantee shall be required to advise the borough of such address and telephone
numbers and any changes thereof.
