[HISTORY: Adopted by the Board of Supervisors of the Township of
Elizabeth 11-6-1990 by Ord. No. 1990-2.
Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Elizabeth Township
Cable System Ordinance."
As used in this chapter, the following terms shall have the meanings
indicated:
The Cable Communications Policy Act of 1984.
A facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable service which includes video programming and which is provided to multiple
subscribers within the Township of Elizabeth, with the exception of those
facilities specifically excluded under Section 602 of the Cable Communications
Policy Act of 1984.
The grantee of rights under this nonexclusive franchise ordinance.
All public streets, rights-of-way and roads owned by or under the
jurisdiction of the Township of Elizabeth.
Any person or entity receiving for any purpose cable service from
a cable system of the company.
The governing body of the Township of Elizabeth, Lancaster County,
Pennsylvania.
The Township of Elizabeth, Lancaster County, Pennsylvania.
Upon application from the company in compliance with this chapter, including
acceptance of the terms and conditions contained herein, the township may
grant to the company a nonexclusive franchise to construct, operate and maintain
a cable system for television-related services, audio services, video services
or data services as may be prescribed or permitted by the Federal Communications
Commission and to use poles, wires, conduits and appurtenances under, along,
across or upon any or all public streets, ways, alleys or parkways, as the
same now or may hereafter exist within the township and within the boundaries
of said township as the same may hereafter be extended, for transmitting and
distributing electricity and electrical impulses and signals for television
purposes, namely to produce reproduction of sights and sounds in combination
to the residents of the township upon the terms and conditions and subject
to the limitations herein set forth.
Upon the annexation of any territory to the township, the portion of
any cable system of the company that may be located or operated within said
territory shall thereafter be subject to all the terms of this chapter as
though it were an extension made hereunder.
The company shall, at all times during the life of this franchise, be
subject to the terms of this chapter, to all lawful exercise of the police
power by the township, to such reasonable regulations as the township shall
hereafter by resolution or ordinance provide which are not expressly forbidden
by or inconsistent with the provisions of the Act and to all other applicable
laws, rules and regulations now in effect or hereafter adopted.
A permit fee in the amount of $250 shall be paid to the township at
the time application is made by the company to operate under the terms of
this chapter. In addition, the company shall reimburse the township for any
advertising and legal expenses incurred in connection with the enactment of
this chapter or the granting of a franchise hereunder.
A.
The company shall indemnify and save the township and
its officers, agents and employees harmless from any and all claims for personal
injuries or property damage and any other claim and costs, including counsel
fees, expenses of investigation and litigation of claims and suits thereon,
which may arise from the installation and/or operation of the company's
cable system.
B.
In case suit shall be filed against the township, either
independently or jointly with said company, to recover for any said claims
or damages, said company, upon notice to it by the township, shall defend
the township, its officers, agents and employees, against said action, and,
in the event of final judgment being obtained against the township, either
independently or jointly with the company, the company will pay such judgment
and all costs and hold the township harmless therefrom. If a judgment is not
obtained against the township, the company shall reimburse the township for
all costs and expenses incurred, including reasonable attorneys' fees
and cost of investigation. For this purpose, the company shall carry and at
all times maintain on file with the Secretary of the township, and at all
times keep in force, a public liability policy or policies in the name of
the company and the township, as their respective interests may appear, insuring
the company and the township against any and all liability arising from the
installation and/or operation of the cable system, which policy or policies
shall be approved by the Solicitor for the township.
C.
Such liability policy or policies shall be in the sum
of $300,000 for damage to property in any one accident, and not less than
$500,000 for injury or death to any one person and not less than the sum of
$1,000,000 for injury or death to all persons affected by any one accident.
Such policies of insurance shall be issued by a company licensed to do business
in the Commonwealth of Pennsylvania. The company shall also carry workers'
compensation coverage for all of its employees subject to such coverage and
shall submit to the Secretary of the township a certificate of insurance showing
that workers' compensation coverage is in effect.
A.
The company shall annually pay a franchise fee to the
township during the life of the franchise, said franchise fee to be in the
amount of 2% of the company's total gross subscriber receipts per year,
as derived from operations in the township. The franchise fee shall be due
and payable on or before the first day of March of each and every year for
the period covering the previous calendar year. The franchise fee set forth
herein shall begin to accrue upon the effective date of this chapter. In addition
to the annual franchise fee paid to the township, the company shall provide
free basic cable television service to one outlet within any public school,
firehouse or municipal building if requested to do so in writing by the township,
provided that it is economically and operationally feasible to provide such
service.
B.
Notwithstanding anything to the contrary set forth in
this chapter, the township specifically reserves the right to increase the
amount of the franchise fee to the maximum franchise fee and to change the
method of computing such fee to the extent authorized by federal and state
laws in effect from time to time during the term of this franchise or any
renewal thereof. The township has not required payment of the maximum franchise
fee permitted by the Act in this chapter, but the township reserves the right
to increase the franchise fee to the maximum franchise fee permitted by law
at any time during the term of the franchise granted under this chapter upon
90 days' written notice to the company. All such increases in the franchise
fee shall become effective on January 1 of the calendar year which commences
at least 90 days following notification to the company of the increase in
the franchise fee. In such event the company may, unless otherwise prohibited
by law, pass through to subscribers the amount of any increase in the franchise
fee.
[Amended 10-4-1993 by Ord. No. 1993-1]
The company shall provide for the township, along with those other Lancaster
County, Pennsylvania, municipalities under contract with the company, at least
one dedicated, noncommercial, multimunicipality, public access channel for
public, educational and municipal government use. The Supervisors shall determine
which township programs shall appear on this public access channel. Upon reasonable
cause shown, the Board of Supervisors may temporarily waive the requirement
that a public access channel be provided for a period of up to four years.
An applicant for a franchise which will be unable to initially provide a public
access channel shall request such a waiver in writing to the Board of Supervisors,
which request shall set forth the time schedule within which a public access
channel shall be provided. A company granted a temporary waiver under the
terms of this section shall provide the public access channel within four
years or such lesser time period as may be established by the Board of Supervisors
when granting the waiver. Failure to provide a public access channel within
this time period shall be considered a violation of this chapter and of the
terms of the franchise granted thereunder.
The company shall during the continuance of this franchise provide facilities
and service sufficient to meet the needs of the public and shall maintain
its facilities and service up-to-date and in keeping with technical progress.
The company shall maintain, operate and render efficient service in accordance
with the Act and under such rules, regulations and standards as are from time
to time established by the township or by any federal or state agency having
jurisdiction. The cable system shall be installed and maintained in accordance
with good engineering practices. All construction must be done in a good and
workmanlike manner, free of defects which may be a hazard to life and limb,
and in conformance with the standards set forth in the National Electric Safety
Code. The following additional service standards shall apply to any franchise
granted under this chapter:
A.
Notice of interruption for repairs. Whenever it is necessary
to shut off or interrupt service for the purpose of making repairs, adjustments
or installations, the company shall attempt to do so at such times as shall
cause the least amount of inconvenience to its customers, and unless such
interruption is unforeseen and immediately necessary, it shall attempt to
give reasonable notice thereof to its customers.
C.
Interference. Subject to federal technical standards,
the company shall at all times operate the cable system so as not to adversely
affect or interfere with existing radio and television reception and shall
prevent radiation from the company's cable system.
D.
Complaints. The company agrees to respond to and investigate
all complaints received from its subscribers within the township and to resolve
said complaints in an efficient and timely manner if at all technically and
reasonably possible, and the company's agents or employees shall be available
for such purposes in the township.
The company shall keep full, true, accurate and current books reflecting
its investment and its operations under this chapter, which books and records
shall be made available on a confidential basis for inspection and copying
by officials of the township. Should the company keep its books in a manner
reflecting its investment and its operations on a system-wide basis, such
books and records shall be made available on a confidential basis for inspection
and copying by officials of the township; provided, however, that the company
shall maintain separate records and books of the subscriber receipts derived
from the company's operations in the township.
It is expressly understood that the township has no control, standard
or regulations pertaining to the subject matter of programs distributed by
the company. The company agrees to indemnify and save harmless the township,
its officers, agents and employees from all claims, suits and actions at law
or equity, including counsel fees and expenses of investigation relating thereto,
for libel, slander, invasion of privacy and patent or copyright infringement
in any action arising out of the subject matter of programs transmitted by
the company. The company further agrees that in the event that the township
is made a party defendant in any action arising out of the subject matter
of programs transmitted by the company, the company shall at its sole cost
and expense defend such action and any appeals therefrom.
The company shall not sell, transfer or assign this franchise without
written notice to the Supervisors. No sale or transfer shall be effective
until the vendee, assignee or lessee has filed with the Township Secretary
an instrument accepting the terms of the franchise and this chapter and agreeing
to perform all the conditions thereof.
The following conditions shall apply to street occupancy by the company:
A.
Use. All transmission and distribution structures, lines
and equipment by the company within the township shall be located with the
approval of the Supervisors and shall be so located as to cause minimum interference
with the rights and reasonable convenience of property owners who use the
streets of the township. Upon request, the company shall furnish the township
with a map showing the cable system in sufficient detail to assure the township
of being currently advised as to the location of the cables. Upon request,
it shall be the responsibility of the company to keep the township advised
of any and all changes, additions and removals to the cable system except
for the individual subscriber's connection wires.
B.
Underground placement. It is the policy of the township,
and it is understood and agreed to by the company, that all distribution lines,
wires and cables shall be located underground in new developments and in those
areas of the township where utility services are located underground.
C.
Restoration. In the case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the company shall, at its own cost
and expense, replace and restore all paving, sidewalk, driveway or surface
of any street disturbed in as good condition as before said work was commenced.[1]
D.
Relocation. In the event that at any time during the
term of a franchise granted hereunder, the township shall lawfully elect to
alter or change the location or grade of any street, road or other public
way or if, in the opinion of the Supervisors, a pole or pole line interferes
with the necessary convenience of the township or a property owner, then upon
reasonable notice by the township, the company shall remove, relay and relocate
its poles, wires and cables or other cable system fixtures at its own expense.
E.
Placement of fixtures. It is the policy of the township,
and it is understood by the company, that where distribution lines are to
be installed along any public street the same shall be attached to existing
utility poles and not to additional poles placed on the same side of the street
as existing utility poles. It is understood and agreed that this restriction
and limitation shall extend to any and all streets within the limits of the
township, even though some of said streets may be part of the state highway
system. A waiver of this requirement may be granted to the company by the
Supervisors upon written application to the township by the company, but said
waiver shall be for good cause shown and in the sole discretion of the Supervisors.
Before the company sets poles or constructs any structure on township property,
streets or rights-of-way, it shall file with the township detailed specifications
showing the exact location, height and dimension of the poles or structures
to be erected. The poles or structures shall not be erected thereafter until
such specifications shall be approved in writing by the Supervisors. All wires,
cables and other overhead equipment shall be at such minimum heights as are
or may be required by the Pennsylvania Public Utility Commission or the Pennsylvania
Department of Transportation. When the company makes written application for
waiver or submits specifications for construction and the Supervisors are
uncertain as to the exact location of the limits of the right-of-way of any
street or road, then in their discretion the Supervisors may require the same
be surveyed by a surveyor selected by them, the cost of said survey to be
paid by the company.
F.
Tree trimming. The company shall have the authority to
trim trees upon and overhanging streets, roads and public places of the township
so as to prevent the branches of such trees from coming in contact with wires
and cables of the company, all trimming to be done in accordance with township
regulations and at the expense of the company.
G.
Use of poles and fixtures. The company agrees that it
will, upon request, furnish a copy of any contract entered into with any public
utility for the use of its poles by the company and setting forth the terms,
conditions and duration of said contract. The company agrees that the copy
of the aforementioned contract will be filed upon written request with the
Secretary of the township prior to starting any installation of wires or other
facilities on township streets or rights-of-way under the franchise.
H.
Removal of wires from premises of subscriber. The company
shall, on request of any subscriber, promptly remove all wires and installation
from the premises of such subscriber.
I.
Removal of wire, poles and installations from township
streets. The company shall remove or cause to be removed from the streets,
roads and public ways of the township, and from all public property, all of
the wires, poles and installations of any kind or nature whatsoever which
have been installed under the authority of the franchise granted hereunder
upon the termination of the franchise or upon cessation of operation under
the franchise by the company, its successors or assigns for any reason whatsoever.
For the purpose of administering this chapter, the company shall, concurrent with the payment of the fee specified in § 64-8 hereof, file a verified statement of the gross subscriber receipts received from subscribers in the township for the preceding fiscal year.
The franchise and rights herein granted shall take effect on the later
of the effective date of this chapter and upon the filing and written acceptance
of the terms of the franchise by the company with the Secretary of the township
and shall continue in full force for a term of 15 years from the earlier of
the effective date of this chapter or the filing of said acceptance, except
as herein otherwise provided.
The company shall make available all subscriber services to all residents
of the township, including all ancillary and auxiliary services, provided
that the company will not be required to install cable solely at company expense
in any area of the township that has a population density of less than 30
customers per mile of cable. However, the company shall provide service to
any residence or other building so excluded by the foregoing limitation for
an installation charge equal to the actual material cost and labor cost involved
for installation of cable in excess of 175 feet, said cost to be calculated
on a pro rata basis where more than one residence is served. The company shall
not deny access to cable service to any group of residential subscribers because
of the income level of the area in which the group resides.
The Supervisors may at any time, subject to the provision of the Act,
declare a forfeiture of this grant for violation or default by the company
of any of the terms thereof; provided, however, that none of the terms of
this grant shall be deemed to be violated so as to permit such forfeiture
unless the company shall first be given written notice by the township of
such violation or default and of the attempt to declare a forfeiture. Thereafter,
if such violation or default shall continue for a period of more than 90 days
or any such longer period of time as specified by the Supervisors, all the
rights and privileges of said company under the provisions of this chapter
may be forthwith declared forfeited and revoked. If any action shall be instituted
or prosecuted directly or indirectly by the company, or by its stockholders
or creditors, to set aside or have declared void any terms of this grant,
the whole of this grant may be thereupon forfeited and annulled at the option
of the Supervisors, to be expressed by ordinance; provided, however, that
the company shall not be deemed to be in default of performance of any provision
of this grant, nor shall any forfeiture be invoked for any violation or failure
to perform any provision hereof, due to strikes, lockouts, insurrections,
acts of God or any cause beyond the control of the company.
The company shall hold the township harmless from the company's
alleged violation of any agreement with a utility company. The granting of
a franchise under this chapter shall not be construed as a guarantee of the
efficiency of the company or an undertaking to maintain the service of the
company. The township assumes no responsibility for the acts or omissions
of the company.
Whenever, by the terms of this chapter, notice is required to be given,
it shall be given in writing by personal delivery or by certified mail to
the company or the township, as the case may be, at its last known address.
This chapter shall constitute a contract between the township and the
company for all the uses, services and purposes set forth herein, and the
company, by its acceptance of the provisions of this chapter, binds itself
to provide the necessary cable system and to establish, operate and maintain
the cable system contemplated by this chapter, continuing without substantial
interruption except for causes beyond its control until the expiration of
the term of this grant. The company shall enter into an agreement in writing,
in a form satisfactory to the township, evidencing the company's acceptance
of the terms and conditions of this chapter prior to exercising any rights
under the franchise granted herein.
Upon acceptance of this franchise, the company shall reimburse the township
for all fees incurred in the preparation and advertisement of this chapter,
including reasonable attorneys' fees.
If the Board of Supervisors or the officer designated to enforce this
chapter by the Board of Supervisors determines that a person has committed
or permitted the commission of a violation of this chapter, the Board of Supervisors
or such enforcement officer shall inform such person in writing of the violation,
shall notify such person to cease the violation of this chapter and shall
inform such person that he or she must pay a civil penalty to the township
within the range of the amounts set forth below to settle the violation. The
penalty for a first offense shall be not less than $50 and not more than $600;
the penalty for a second offense shall be not less than $100 and not more
than $600; and the penalty for a third or greater offense shall be not less
than $200 and not more than $600. If such person fails or refuses to remit
the penalty to the township within 10 days from the date of written notice
of the violation of this chapter, the township may commence a civil enforcement
proceeding seeking penalties and costs for the violation of this chapter and/or
may commence an action in equity. The township shall seek a judgment for the
penalty previously imposed, together with additional daily penalties for continuing
violations, plus all court costs, including the reasonable attorneys'
fees incurred by the township in the enforcement proceedings. Each day that
a violation continues shall constitute a separate violation, and each section
of this chapter which is violated shall constitute a separate violation. If
the defendant neither pays nor timely appeals the judgment, the township may
enforce the judgment pursuant to the applicable rules of civil procedure.
In addition to or in lieu of the penalties provided in § 64-23 hereof, any violations of this chapter may be abated by proceeding against the violator in a court of equity for relief.
