[HISTORY: Adopted by the Borough Council
of the Borough of Glenolden as indicated in article histories. Amendments
noted where applicable.]
[Adopted 10-10-1977 by Ord. No. 804, approved 10-10-1977.]
In consideration of the faithful performance
and observance of the terms, conditions and reservations hereinafter
specified, the Borough Council of the Borough of Glenolden, hereinafter
referred to as "Borough," grants the nonexclusive franchise to the
Delaware County Cable Television Company, hereinafter referred to
as "company," to install, construct, own, operate and maintain a community
antenna cable television system and to erect, maintain and operate
television transmission and distribution facilities, and additions
thereto, in, under, over, along, across and upon the streets, lanes,
avenues, sidewalks, alleys, bridges and other public places in the
Borough of Glenolden, Delaware County, Pennsylvania, for the purpose
of transmission and distribution of audio and visual signals and television
energy in accordance with the laws and regulations of the United States
of America and the Commonwealth of Pennsylvania, appropriate agencies,
the Federal Communications Commission rules and regulations and the
ordinances and regulations of the Borough of Glenolden now in effect
or hereafter enacted. The company shall observe the following conditions
and terms:
A. No poles or wires shall be erected, constructed or
maintained by the company along public highways which contain neither
aerial telephone nor aerial electric facilities or from which both
aerial telephone and aerial electric facilities are hereafter removed.
Where all other utilities are underground, the company's cable facilities
shall be placed underground.
B. Where the wires and other aerial facilities of the
company are erected, constructed, maintained or operated along or
over public highways which contain an aerial electric or telephone
pole line or a joint-use electric and telephone pole line, the wires
and other facilities of the company shall be supported by attachment
to such pole line, but nothing in this subsection shall relieve the
company of the duty of securing the consent for such attachment from
the owner of such pole line.
C. Poles, ducts and other facilities of the company shall
be so erected, constructed and maintained as not to interfere with
the traffic over the public highways. No new poles shall be erected
without prior approval of Borough Council, which approval shall not
be unreasonably withheld.
D. Poles, lines, cables, ducts and other facilities of
the company shall be removed by the company when no longer used or
useful for their intended purpose or whenever required by the Borough
in connection with any public improvement or other reasonable cause,
at company's expense.
E. Any public highways, sidewalks and abutting property
disturbed or damaged in the erection, construction maintenance or
operation of the facilities of the company shall be promptly repaired
by the company to the reasonable satisfaction of the Borough Engineer.
The company shall substantially complete physical
installation of its equipment and facilities within the Borough within
five years after receipt of the certificate of compliance from the
Federal Communications Commission.
The duration of the rights, privileges and authorities
hereby granted shall be 15 years from the date of acceptance of the
ordinance by the company; provided that the company shall have the
option of extending this franchise for an additional period of 10
years upon application by the company not later than one year prior
to the expiration date of the initial fifteen-year franchise, and
the option of extending this franchise for an additional period of
five years upon application by the company in writing one year prior
to the expiration date of the additional ten-year franchise, provided
further that such a renewal of this franchise is specifically conditioned
upon review and approval by the Borough of Glenolden, at a public
proceeding affording due process, of the company's qualifications
and performance, the adequacy of the franchise provisions and its
consistency with the rules and regulations of the Federal Communications
Commission.
This franchise is conditioned and contingent
upon the company's filing with the Council its unconditional acceptance
of this franchise as set forth in this ordinance and the company's
promise to comply with and abide by all the provisions, terms and
conditions of this ordinance. Such acceptance and promise shall be
in writing, duly executed and sworn to by and on behalf of the company
before a notary public or other officer authorized by law to administer
oaths, and delivered to the Secretary of the Borough within 30 days
after passage of this ordinance.
A. The company shall indemnify, hold harmless and defend
the Borough, its agents, officers, servants and employees from and
against any and all costs, expenses (including reasonable counsel
fees), liabilities, losses, damages, suits, actions, fines, penalties,
claims or demands of any kind asserted by or on behalf of any person
or governmental agency or authority arising out of or in any way connected
with any of the following, and the Borough, its agents, servants,
officers and employees shall not be liable to the company on account
of any of the following:
(1) Any failure by the company to abide by, keep or perform
any of the terms, conditions or provisions of this franchise.
(2) Any failure by the company to comply with any statutes,
ordinances, regulations or orders of any governmental authority.
(3) Any bodily injury (including death) or property damage
arising with respect to this franchise.
(4) Any act or activity relating to the granting of this
franchise to the company or to the operations conducted thereunder.
B. In connection with any suit or other proceeding in
which the Borough, its agents, servants, officers and employees shall
be made a party, involving this franchise or any act or activity conducted
thereunder or relating thereto and which may have any direct effect
upon the Borough, its agents, servants and employees, the company,
upon written request of the Borough, shall come in and defend such
suit on behalf of the Borough, its agents, servants and employees
and shall bear all of the costs and expenses relating thereto.
C. The company shall maintain throughout the term of this franchise general liability insurance insuring the Borough and the company with regard to all liabilities and contingencies mentioned in Subsection
A herein in the minimum amounts of:
(1) One hundred thousand dollars for bodily injury or
death to any one person.
(2) Three hundred thousand dollars for personal injury
in any one single accident.
(3) Ten thousand dollars property damage for any one single
accident.
(4) A one-million dollar "umbrella" policy.
D. The company shall maintain throughout the term of
this franchise a performance bond in favor of the Borough, with a
good and sufficient surety approved by the Borough, in the sum of
$20,000, conditioned upon the company well and truly performing its
several obligations as set forth in this franchise, and providing
that in the event of any failure by the company to so perform, the
Borough may proceed against the surety either to obtain proper performance
of such obligations of the company or to be compensated for the failure
of the company to render such proper performance.
E. The insurance policy and bond obtained by the company
in compliance with this section must be approved by Council, which
approval shall not unreasonably be withheld, and such insurance policy
and bond shall be filed and maintained with Council during the term
of this franchise.
F. Neither the provisions of this section nor any bond
accepted by the Borough pursuant thereto shall be construed as excusing
faithful performance by the company or as otherwise limiting the liability
of the company under this franchise.
The company shall render efficient service,
make repairs promptly and interruptions, insofar as possible, shall
be preceded by notice and shall occur during minimum use of the system.
Upon receipt of a complaint of the quality of service, equipment malfunctions
and similar matters, the company shall promptly investigate such complaints.
Where possible, the company shall investigate such complaints within
24 hours of their receipt. Resolution of such service complaints shall
be made promptly. For the purpose of investigation and resolution
of regular service complaints, the company shall maintain an agent
or a local business office convenient to the Borough. In addition,
the company shall maintain a toll-free business telephone for the
receipt of complaints and requests for repairs or adjustment.
The company agrees to and shall, upon request
of the Borough or the institution involved, extend without charge
one primary or standard line available to each fire station, police
station, public school, private school, parochial school, public library,
municipal building and such public auditorium and institutions as
are requested by the Borough in the Borough. Such service shall consist
of one television outlet within the building or, in the case of a
group of buildings, within the main building of the group, providing
service to one television receiver. The company shall not be required
to install additional outlets at its expense but shall, at the request
of the Borough, install such additional outlets or other facilities
as may be requested, and the Borough or the institution involved shall
pay the company on a time-and-material basis for such additional installation
and shall pay the company in accordance with its schedule of rates
as set forth in this ordinance for such additional service.
A. In the use and occupation of the surfaces, subsurfaces,
space above, below and adjoining the streets, public ways and places
of the Borough, the company's equipment and plant and their construction,
operation and maintenance shall be in accordance with the provisions
of the following:
(1) The National Electrical Code of the National Board
of Fire Underwriters.
(2) The Standards and Practices Code of the National Community
Television Association.
(3) Such applicable ordinances, codes, laws and regulations
of the Borough of Glenolden, County of Delaware, State of Pennsylvania
and the United States of America as are now in effect or hereafter
enacted.
B. Company's equipment and plant shall be kept and maintained
in a safe, suitable and substantial condition and in good order and
repair so as not to endanger the lives or interfere unreasonably with
the rights of persons or to cause physical damage to property or to
interfere with improvements the Borough may deem proper or to hinder
or obstruct unnecessarily pedestrian or vehicular traffic on streets,
public ways and places.
C. Where the Borough or a public utility serving the
Borough desires to make use of the poles or other wire-holding structures
of the company but agreement therefor with the company cannot be reached,
the Council may require the company to permit such use for such consideration
and upon such terms as the Council shall determine to be just and
reasonable, if it is determined by Council that the use would enhance
the public convenience and would not unduly interfere with the company's
operations.
D. Company shall, upon not less than 72 hours' advance
notice, temporarily raise, lower or relocate its wires and cables
to permit the moving of buildings or any other item of bulk, and the
expenses incurred by the company in such raising, lowering or relocation
shall be paid in advance by the person or concern requesting the same.
E. The company shall, at its own cost and expense, replace,
restore or repair any private property, street, sidewalk, alley, public
way or paved area destroyed or damaged by the company or its agents,
employees or servants.
F. If at any time during the term of this franchise the
Borough shall elect to alter or change the grade of any street, sidewalk,
alley or other public way, or when required by reason of traffic conditions,
public safety, street vibration, freeway and street construction,
installation of sewers, drains, water pipes, power lines, signal lines
and tracks or any other type of structure or improvements, when acting
in a governmental or proprietary capacity, the company, upon reasonable
notice by the Borough, shall remove, relay and relocate its poles,
wires, cables, underground conduits, manholes and other fixtures at
its own cost and expense.
It shall be the policy of the Borough to liberally
amend this franchise, upon application of the company, when necessary
to enable the company to take advantage of any developments in the
field of television and radio signals which will afford it an opportunity
more effectively, efficiently or economically to service its customers;
provided, however, that this section shall not be construed to require
the Borough to make any amendment or to prohibit it from unilaterally
changing its policy stated herein.
A. In the event that the use of any part or all of the
CATV system is discontinued for a reason for a continuous period of
12 months, or that such system or property has been installed in any
street or public places without complying with the requirements of
this franchise, or that the franchise shall have been terminated,
canceled or expired for any reason, the company, upon notice, shall
promptly remove from the streets or public places all such property
and poles of such system, other than any which the Borough may permit
to be abandoned in such place, and shall also remove house distribution
cables and connections. In the event of such removal, the company
shall promptly restore the street or other areas from which such property
has been removed to a condition satisfactory to the Borough.
B. Upon termination of service to any subscriber, the
company shall promptly remove all of its facilities and equipment
from the premises of such subscriber upon his request.
The company shall abide by all applicable ordinances
of the Borough relating to street and sidewalk work and shall make
application accompanied by the required fees for permits to perform
any and all such work before commencing same. Upon failure of the company to complete any work required
by law or by the provisions of this ordinance to be done in any street
within the time prescribed and to the satisfaction of the Borough,
the Borough may cause such work to be done and the company shall pay
to the Borough the cost thereof in the itemized amounts reported by
the Borough to the company within 30 days after receipt of such itemized
report.
The company shall not, as to rates, charges,
service, facilities, rules, regulations or in any other respect, make
or grant any preference or advantage to any person, nor subject any
person to any prejudice or disadvantage.
A. The right given the company shall not be assignable
without the prior written approval of the Borough, which approval
shall not be unreasonably withheld.
B. Any assignment attempted by the company in the absence
of such consent shall be ineffective and the right given hereby shall
thereby be rendered null and void; provided, however, that the company
may assign this franchise and contract and its rights hereunder without
such consent to a subsidiary or affiliated corporation owned, controlled
or managed by the company, but the company shall remain liable for
the performance of its obligations hereunder notwithstanding any such
assignment.
Copies of all petitions, applications and communications
submitted by the company to the Federal Communications Commission,
Securities and Exchange Commission or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matters
affecting CATV operations authorized pursuant to this franchise shall
be made available to the Borough if requested.
A. The right is hereby reserved to Council to adopt,
in addition to the provisions contained herein and in existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of the police power.
B. The Borough shall have the right to inspect the books,
records, maps, plans and other like materials of the company at any
time during normal business hours.
C. The Borough shall have the right, during the term
of this franchise, to install and maintain free of charge upon the
poles of the company any wire and pole fixtures necessary for a police
alarm system or lighting fixtures on the condition that such wire
and pole fixtures do not interfere with the CATV operation of the
company.
[Amended 7-8-1982 by Ord. No. 866, approved 7-8-1982]
The company's charge for installation of a single
residential television cable connection shall not exceed $25, and
the charge for cable television for a single residential television
cable shall not exceed $7.75 per month. The charge for additional
installations in the same residence shall not exceed $10 per additional
installation. The charge for cable service for such additional connection
in the same residence shall not exceed $3 per month, per additional
connection. There shall be no increase in these rates without the
express consent of the Borough. The company shall have the option
to require a deposit for each set commander provided to the subscriber.
Each apartment unit within an apartment building shall be considered
a separate residential dwelling and charged accordingly.
[Amended 11-12-1992 by Ord. No. 985, approved 11-12-1992; 5-13-1993 by Ord. No.
996, approved 5-13-1993; 1-18-2000 by Ord. No. 1075, approved 1-18-2000]
A. The company shall pay to the Borough 5% of the annual
gross receipts. "Gross receipts" shall mean any and all compensation
in any form paid by and due or owing by subscribers to the company
or any lessee of the company from the distribution of any cable service
over the cable system to said subscriber or lessee of the company
within the limits of the Borough. All installation charges, reconnection
charges, service charges and charges for inspection, repair or modification
of installations, all advertising revenue, all sales commissions from
all present and any future sales (home shopping) channels and any
revenues generated from technologies that are determined by the FCC
to be a cable service shall be included in said sum.
B. Such fee shall be paid by the company to the Borough
in quarterly installments due no later than 30 days following the
end of the calendar year quarters ending March 31, June 30 and September
30, and its best effort within 45 days, but no later than 60 days,
following the end of the calendar year, ending December 31. With each
payment of said fee, upon the request of the Borough, the company
shall submit a report of gross receipts for such quarter year, certified
by a representative of the company.
C. The company shall pay to the Borough a fee on internet access revenues in addition to the franchise fee provided in Subsection
A hereinabove. For the purposes of this franchise, "internet access revenues" shall be defined to be those revenues collected for the provision of two-way, high-speed data services to residences within the Borough. The fee on internet access revenues shall be calculated as follows:
(1)
If there is no other provider of two-way, high
speed data services (128 Kbs or greater) to residences within the
Borough, then 3% of all internet access revenues received by Suburban
for each twelve-month period (payable quarterly on internet access
revenues); or
(2)
At such time as any other provider of two-way, high speed data services is providing such service to residences within the Borough, the franchise fee paid by Suburban on internet access revenues shall be increased or decreased from that provided in Subsection
C(1) herein, to equal the franchise fee (if any) or similar use fee or charge based on internet access revenues or similar revenues paid to the Borough by any other such provider or, if there is more than one such provider, to the lower or lowest such franchise fee or similar use fee or charge paid by any such provider; provided, however, that in no event shall Suburban be required to pay a fee in excess of 5% on internet access revenues.
(3)
If internet access service provided over a cable system is designated a noncable service under applicable law, then payment of a franchise fee on internet access revenue shall not be governed by Subsection
C(1) and
(2). Payment to the Borough of such fees on internet access revenue shall be governed by federal and state law applicable to revenues of cable systems from such noncable services.
(4)
Any dispute or controversy arising under or
in connection with this provision concerning the fee payable on internet
access revenues shall be settled exclusively by arbitration in the
Borough, in accordance with the rules of the American Arbitration
Association then in effect.
The company agrees not to oppose intervention
by the Borough in any suit or proceeding to which the company is a
party and which may have a substantial adverse effect on the company's
operations within the Borough.
The company shall comply with the present and
future rules and regulations of the Federal Communications Commission
in connection with and relating to the operation of its system and
shall provide a minimum service offering as follows:
A. Channel capacity. Company shall construct a system
with a minimum channel capacity of 20 television channels and shall
maintain a plant having technical capacity for nonvoice return communications.
B. Signals to be carried. Company shall carry on its
system the signals of all stations significantly viewed in the Borough
of Glenolden, Delaware County, and the signals of no less than two
distant independent commercial stations as well as the signals of
educational stations as may be feasible and permitted under the rules
and regulations of the Federal Communications Commission.
C. Access channels. Company shall maintain all access
channels as required by the Federal Communications Commission. As
a minimum, however, unless prohibited by law, the company shall provide
public, governmental and educational channels to the Borough to be
shared by others.
D. The company shall not engage in the sale or rental
of television or radio receivers, the furnishing of television or
radio receiver repair service or the solicitation or referral to particular
persons or classes of persons for such sale, rental or service. The
facilities of the company shall not be constructed or operated so
as to necessitate the use of a receiver of a unique type for optimum
reception of signals. However, nothing contained herein shall be interpreted
to prohibit the use of converters or descramblers on the CATV system.
E. Program origination. Grantee shall conduct program
origination cable casting as required by the Federal Communications
Commission.
A. The performance by the company hereunder is subject
to the limitations, restrictions or requirements now existing or which
may henceforth be imposed by law, rules or order of the Federal Communications
Commission or any other governmental board, commission or authority
of any kind.
B. Should the Federal Communications Commission modify
or amend the provisions of Section 76.31 of its rules and regulations
entitled "Franchise Standards," such modifications or amendments shall
be incorporated into this franchise within one year of the adoption
of the modification or amendment or at the time of the renewal at
the expiration of the franchise pursuant to the terms and provisions
hereof.
The Borough shall have the right to rescind
or revoke the rights herein granted upon any substantial violation
by the company of any of the obligations and requirements contained
herein, after written notice by the Borough to the company and continuation
of such violation, failure or default.
A. Such written notice to the company shall specify the
manner in which the company is in violation, failure or default with
respect to the franchise.
B. The notice given by the Borough shall give the company
a specified, reasonable amount of time within which to correct the
violation, failure or default, but in no event shall the time period
be less than 30 days from the date of receipt of the notice to the
company.
If any section, subsection, sentence, clause,
phrase or portion of this ordinance is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and
such holding shall not affect the validity of the remaining portions
hereof.
The Borough and the executive officers of said
Borough and the departments and bureaus of the Borough shall issue
to the company in the name of the Borough all permits necessary or
convenient to evidence the grant of the franchise herein and to implement
the provisions of this ordinance.
Company shall make application to the Borough
and pay all fees for any and all street work permits as required by
Borough ordinances.
Company shall supply Borough annually with a
letter signed by the president of the company certifying compliance
with Federal Communication Commission regulations and with this ordinance.
Ordinance No. 675 and all ordinances or parts
of ordinances conflicting with the provisions of this ordinance are
hereby repealed to the extent of such conflict.
[Adopted 10-19-1999 by Ord. No. 1068,
approved 10-19-1999; amended in is entirety 2-17-2015 by Ord. No. 2104, approved 2-17-2015]
A. In consideration of the faithful performance and observance of the
conditions and reservations hereinafter specified, the nonexclusive
right (hereinafter referred to as "franchise") is hereby granted to
RCN Telecom Services of Philadelphia, LLC (hereinafter referred to
as "RCN" or "the company") to construct, own, operate and maintain
a cable television system and to erect, maintain and operate television
transmission and distribution facilities and additions thereto in,
under, over, along, across and upon the streets, lanes, avenues, sidewalks,
alleys, bridges and other public places in the Borough of Glenolden,
Delaware County, Pennsylvania, and subsequent additions thereto, for
the purpose of reception, transmission, collection, amplification,
origination, distribution and/or redistribution of signals in accordance
with the laws and regulations of the United States of America, the
Commonwealth of Pennsylvania, the Federal Communications Commission
(the "FCC") and the ordinances and regulations of the Borough of Glenolden,
now in effect or hereafter enacted. The duration of the rights, privileges
and authorities hereby granted shall be 10 years from the date of
acceptance of this ordinance by the company, provided that the company
shall have the option of extending this franchise for an additional
term of five years unless the Borough gives the company not less than
one year's written notice of the intent not to so extend this
franchise.
B. Renewal.
(1)
During the six-month period which begins with the 36th month
before the franchise expiration, the Borough may on its own initiative,
and shall, at the request of the company, commence proceedings which
afford the public appropriate notice and participation for the purpose
of:
(a)
Identifying the future cable-related community needs and interest.
(b)
Reviewing the company's performance under the franchise.
Upon completion of the above proceeding, the company may submit a
proposal for renewal.
(2)
A four-month period shall be allowed for determining the company's
eligibility for franchise renewal. The Borough shall consider the
company's annual reports to the Borough, the Federal Communications
Commission and the Commonwealth, if such is required, and these shall
be considered in light of cable television industry performance on
a national basis in respect to technical developments and performance,
programming, costs of service and the particular requirements set
out in this ordinance. After a public hearing, duly advertised, the
Council shall make recommendation, in writing to the Borough for renewal
of the franchise without change in contract, renewal with amendment(s)
to the contract or termination of the franchise. In the latter instance,
the specific reasons for nonrenewal of the franchise are to be stated.
There is hereby granted the further right, privilege and authority
to the company to lease, rent, subscribe to service or in any other
manner obtain the use of towers, poles, lines, cable, facilities,
services, licenses and franchises within the limits of the Borough
of Glenolden, Pennsylvania, including the Bell Telephone Company of
Pennsylvania and the Philadelphia Electric Company and to use such
towers, poles, lines, cables and other equipment and facilities, subject
to all existing and future ordinances and regulations of the Borough,
so long as such future ordinances and regulations of the Borough do
not materially adversely affect the rights granted herein. The poles
used for the company's distribution system shall be those erected
and maintained by the telephone or electric companies when and where
practicable, provided that mutually satisfactory rental ordinances
can be entered into with said companies.
A. The company shall have the right and privilege to construct, erect,
operate and maintain in, upon, along, above, across, over and under
the streets such poles, wires, cable, conductors, ducts, conduit,
vaults, manholes, amplifiers, appliances, attachments, and other property
as may be necessary and appurtenant to its system, provided that all
appropriate permits from the Borough are obtained in advance of any
activity that requires a permit including, but not limited to, the
individual permits that are issued for the location of such poles
subject to the approval of the affected homeowner and the Borough
in conjunction with the Borough Council and, in addition, so to use,
operate and provide similar properties rented or leased from other
persons, firms or corporations for such purpose. In addition, the
company shall be required to provide seven days' advance notification
of construction activity to affected property owners.
B. The company's rights and privileges shall be subordinated to
any prior lawful use of occupancy of the streets or other public property
and shall not be so used as to interfere with existing improvements
or with new improvements this Borough may deem proper to make or as
to hinder or obstruct the free use of the streets, alleys, bridges
or other public property. In the event that any equipment or facilities
of the company shall interfere with any such improvement existing
or intended to be made by the Borough, the company shall, upon reasonable
notice from the Borough, forthwith relocate said equipment and facilities
at the company's expense so as to eliminate said interference.
C. Construction and maintenance of the transmission distribution system
shall be in accordance with the provisions of the National Electrical
Safety Code, 1993 (NED-70), or any amendments or revisions thereof
and in compliance with any applicable rules, regulations or orders
now in effect or hereafter issued by any federal or state commission
or any other public authority having jurisdiction.
D. All installations of equipment shall be durable or of a permanent
nature and installed in accordance with good engineering practice
as outlined by the National Bureau of Standards, American Institute
of Electrical Engineers and American Society of Mechanical Engineers.
The company shall comply with all Borough regulations, ordinances
and state and federal laws now existing or hereinafter enacted so
as not to interfere with the right of the public or individual property
owner and so as not to unduly interfere with the travel and use of
public places by the public during the construction, repair or removal
thereof.
E. In the construction, conduct, maintenance and operation of its business,
the company shall comply with all requirements of Borough ordinances,
resolutions, local laws, rules, regulations and specifications heretofore
or hereafter enacted or established, including but not limited to
those concerning street work, street excavation, use and removal and
relocation of property within a street.
F. If the company, in the exercise of its franchise, shall disturb any
lawn or landscaped area, pavement, sidewalk, street, driveway, public
way or other surface, it shall, at its own expense and in a manner
approved by the Borough, replace and restore such areas so disturbed
in as like a condition as before the work was commenced.
G. Restoration on private property shall be conducted in a timely and
professional manner. The restored area or surface shall be in a like
condition as was present prior to the disturbance by the company.
The company shall not be liable for any defacement of or damage to
customer's premises resulting from the furnishing of services
or equipment on such premises or the installation or removal thereof,
unless such defacement or damage is caused by negligence or willful
misconduct of the company's agents or employees.
The franchise granted herein grants the company the right to
install and operate a cable system, and does not take the place of
any other franchise license or permit which may be required by law
or ordinance or regulation.
In all areas of the Borough where cables, wires or other like
facilities of public utilities are placed underground, the company
shall place its cables, wires or other like facilities underground.
The company shall grant to the Borough, free of expense, joint
use of any and all poles owned by it for any proper Borough purpose,
provided that it may be done without interfering with the free use
and enjoyment of the company's own facilities and provided that
the Borough does not compete with the company.
In case of any emergency or disaster, the company shall, upon
request of the Borough or its civil defense authority, make its facilities
and personnel available to the Borough or said authority during the
emergency or disaster period without charge and in accordance with
the federal Emergency Alert System (EAS) regulations as promulgated
by the FCC.
In lieu of maintaining an office and studio in the Borough,
the company shall install a television monitor and state of the art
character generator and videocassette recorder in the Municipal Building
and shall maintain the necessary equipment to provide exclusive use
of one channel for Borough residents only.
A. The company shall construct and operate a cable system and render
service to all subscribers consistent with all applicable rules and
regulations of the FCC and any other applicable laws, rules or regulations
of municipal, state or federal agencies having jurisdiction over such
matters.
B. The company shall comply with all FCC requirements that pertain to
signal leakage performance criteria, and provide a timely response
and repair at no charge for all complaints from non-cable customers
who are experiencing impaired reception caused directly by the transmission
of the company's cable system.
C. The company shall provide same-day service response, on any normal
working day, for all complaints and requests for adjustments received
before 12:00 noon. Calls received after 12:00 noon must be responded
to within 24 hours. After 12:00 noon on Saturdays or Sundays and holidays,
customers with problems must have a callback by 12:00 noon the next
working day. Twenty-four-hour emergency service will always be available
for the following: loss of channels for the entire cable system, downed
lines blocking streets or sidewalks, cable causing a dangerous situation
to pedestrians or traffic, or when five or more calls come from the
Borough due to loss of signal or impaired picture quality. Upon failure
to remedy a loss of service attributable to the cable system within
24 hours after a complaint, if requested, the company shall credit
1/30 of the regular monthly charge to the subscriber for each 24 hours
or fraction thereof, until service is restored.
D. The company shall have the work done between the hours of 7:00 a.m.
and 12:00 noon whenever possible, anytime there is a loss or interruption
of service to more than 500 subscribers caused by the company. Whenever
the company has a planned outage due to maintenance of the system,
for a period of 24 hours or more, the company shall credit to the
subscriber's account 1/30 of the monthly subscription fee. The
requirements for maintenance of equipment contained in this provision
shall not apply to a subscriber's television set.
E. The company shall keep a log and, at the request of the Borough,
file a copy thereof at the end of each quarter with the Borough listing
by category all complaints and trouble calls received, the number
of second or subsequent calls on the same complaint, the remedial
action taken and the period of time required to satisfy each reported
complaint. The Company shall maintain and make available upon request
a list of credits with the Borough, when available.
F. The company shall be required to interconnect its cable system, to
facilitate the carriage of public, educational and government access
channels, with any other franchised cable company operating in the
Borough. Such interconnection shall be made within 60 days of a request
by the Borough. The company may request and the Borough may grant
reasonable extension of time for the company to comply with this requirement.
G. The company shall have a representative attend meetings of the Borough
or any other meetings when requested.
A. The company shall pay to the Borough 5% of the annual gross receipts.
"Gross receipts" shall mean any and all compensation and other considerations
in any form paid by and due or owing by subscribers to the company
or any lessee of the company from the distribution of any cable service
over the cable system to said subscriber or lessee of the company
within the limits of the Borough. All installation charges, reconnection
charges, service charges and charges for inspection, repair or modification
of installations, all advertising revenue, all sales commissions from
all present and future sales channels, and any revenues generated
from technologies that are determined by the FCC to be a cable service
shall be included in said sum.
B. While the company is in the process of franchising in the various municipalities in the County of Delaware, should any other municipality in said county receive a better fee package in any franchising ordinance than that set forth in Subsection
A above, the Borough shall automatically be entitled to receive, and the company shall be obligated to pay, the higher fee upon adoption by the Borough of an ordinance with the higher fee set forth therein.
C. The company shall provide and file with the Borough annual certified
audited financial statements. The company shall also make available
to the Borough, upon request, all documents necessary for the Borough
to determine whether or not the company is fulfilling its obligations.
Such documentation shall include but not be limited to maps, plans,
a schedule of proposed installation, certificates of insurance and
performance bonds. The company shall notify the Borough of any material
alteration or change of insurance coverage within seven to 30 days
in advance of said change.
D. Within the second year of this franchise term, the Borough shall
be permitted to conduct an audit of the company's records to
ascertain whether the company is in compliance with the financial
terms and provisions of this ordinance. The company shall be responsible
for the payment of the Borough's auditor's reasonable fees.
E. The company is required to file quarterly reports, including but
not limited to the franchise fee payment worksheet (to be provided
by the Borough) within 15 days of quarter's end which present
earned revenue. On a quarterly basis, the company shall pay 100% of
the fees to the Borough. The Borough Manager/Secretary or his/her
representative shall have the right to examine or have examined the
books and records of the company to assure compliance with the terms
and provisions of this ordinance, such cost to be paid by the company.
Noncompliance with the aforementioned will result in a penalty of
10% on moneys due for that quarter.
F. The company shall keep on file with the Borough a current list of
its stockholders, bondholders, owners and partners and the holdings
thereof.
A. This franchise right is a privilege to be held in personal trust
by the original grantee. It cannot be transferred, leased, assigned
or disposed of as a whole or in part, either by forced sale, merger,
consolidation or otherwise, without first offering to transfer, lease,
assign or dispose of in whole or in part to the Borough by giving
written notice to the Borough. The Borough shall have 120 days to
accept said offer under the same terms and conditions as the offer
received by the company. In the event that the Borough does not accept
the offer, the franchise cannot be transferred, leased, assigned or
disposed of, as a whole or in part either by forced sale, merger,
consolidation or otherwise, without the prior consent of the Borough
expressed by this ordinance, which consent shall not be unreasonably
withheld.
B. Notwithstanding the foregoing, the Borough's consent to transfer
shall not be required in the event of a transfer or assignment of
this franchise to a parent, subsidiary or affiliated entity that has
control, is controlled by or under the same control as the original
grantee, subject to the company providing notice to the Borough at
least 30 days in advance of such transfer. In this event, the Borough
shall not be afforded the right of first refusal.
Upon request by a subscriber for termination of service and
such termination is not due to nonpayment for service, the company
shall promptly:
A. Remove all personal property and/or equipment, including but not
limited to converters and remote controls .
B. Disconnect cable or wiring into the subscriber's premises either
at the point of entry or at a feed point from cable tap.
C. Refund payment made in advance for service. The refund of advance
payment should be calculated based upon an effective termination date,
which shall be the date which occurs first that is the actual date
of termination of service into the premises, or seven days after a
request is made by the customer to discontinue service. If the company
has the capability of discontinuing service without visiting the premises,
then the effective date of termination shall be the day the customer
requests termination of service.
D. Promptly return security deposits, if any, upon the customer returning
equipment for which deposit is applicable.
E. Submit final statement of account to customer within 45 days of voluntary
termination of service.
F. The company shall not impose a termination charge or fee to a customer
who requests termination of service. The company shall not be required
to remove cable or wiring from either the inside or outside of subscriber
premises. However, upon request from the subscriber, the company must
remove aerial cable or wiring from only the exterior of the customer's
property.
At the expiration of the term for which this franchise is granted
or upon its termination and cancellation as provided for herein, the
Borough shall have the right to require the company to remove at its
own expense all aboveground portions of the system from all public
ways within the Borough.
The company will file with the Borough true and accurate copies
of as-built maps and schedules of any major construction. This provision
is not intended to waive or alter the filing of any maps, plans or
schedules as required for permits or any approvals from the Borough.
A. Notice of violation. In the event the Borough believes the grantee
has not complied with the terms of this ordinance, it shall notify
the grantee in writing, by certified or registered mail, of the exact
nature of the alleged noncompliance.
B. Grantee's right to cure or respond. The grantee shall have 30 days from receipt of the notice described in Subsection
A to respond to the Borough contesting the assertion of noncompliance, and to cure such default or, in the event that by the nature of default, such default cannot be cured within the thirty-day period, request permission from the Borough for additional time in which to take reasonable steps to remedy such default, and such permission shall not be unreasonably withheld. In the event the grantee contests the assertion of noncompliance in a timely manner, then the time specified to cure the alleged default shall be stayed or tolled pending a hearing before the Borough Council. In the event the Borough Council affirms the assertion of noncompliance following a hearing affording the grantee the opportunity to be heard, then the grantee shall have 30 days within which to cure such default.
C. Force majeure. If for any reason of force majeure either party is
unable in whole or in part to carry out its obligations hereunder,
said party shall not be deemed in violation or default during the
continuance of such inability. Unless further limited elsewhere in
this ordinance, the term "force majeure" as used herein shall have
the following meaning: strikes; acts of God; acts of public enemies;
orders of any kind of the government, of the United States of America
or of the Commonwealth of Pennsylvania or any of their departments,
agencies, political subdivisions or officials, or any civil or military
authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; fires; hurricanes; volcanic activity; storms; entire
failure of utilities; or any other cause or event not reasonably within
the control of the party affected.
D. Cancellation of franchise.
(1)
In addition to all other rights and powers pertaining to the
Borough by virtue of this ordinance or otherwise, the Borough reserves
the right to terminate and cancel the franchise hereby granted and
all rights and privileges of the company hereunder in the event that
the company:
(a)
Violates any material provision of this ordinance or any rule,
order or determination of the Borough or Borough Council made pursuant
to this ordinance.
(b)
Becomes insolvent or unable or unwilling to pay its debts or
is adjudged as bankrupt.
(c)
Violates any federal or Pennsylvania law or regulation .
(2)
Such termination and cancellation shall be by written notice
to the company from the Borough Council, provided the provisions of
§ 165-41 herein have been followed, and shall in no way
affect any of the Borough's rights under this franchise or any
provision of law.
This ordinance and the rights granted to the company shall become
effective upon execution of a contract between Glenolden Borough and
the franchisee, binding both parties to abide by all conditions of
this ordinance.
A. The company shall pay and by its acceptance of this franchise the
company specifically agrees that it will pay all damages and penalties
which the Borough may legally be required to pay as a result of granting
the franchise. These damages or penalties shall include, but shall
not be limited to, damages arising out of the installation, operation
or maintenance of the cable system authorized herein, whether or not
any act or omission complained of is authorized, allowed or prohibited
by this ordinance.
B. The company shall pay and by its acceptance of this franchise specifically agrees that it will pay all expenses incurred by the Borough in defending itself with regard to all damages and penalties mentioned in Subsection
A above. These expenses shall include all out-of-pocket expenses such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the Borough Solicitor or his assistants or any employees of the Borough.
C. The company shall maintain and by its acceptance of this franchise specifically agrees that it will maintain throughout the terms of this franchise liability insurance insuring the Borough and the company with regard to all damages mentioned in Subsection
A above in the minimum amounts of:
(1)
The company shall provide evidence of workmen's compensation
and vehicle insurance from a carrier with an A.M. Best rating of "A"
or better.
(2)
Comprehensive general liability insurance shall be written on
an occurrence basis with a combined single limit of no less than $1,000,000
for bodily injury, property damage and personal injury.
D. The Company shall maintain and by its acceptance of this franchise
specifically agrees that it will maintain through the term of this
franchise a faithful performance bond running to the Borough in the
penal sum of $25,000 conditioned that the company shall well and truly
observe, fulfill and perform each term and condition of this ordinance
and that, in case of any breach of condition of the bond, the amount
thereof shall be recoverable from the principal and surety thereof
by the Borough for all damages resulting from the failure of the company
to well and faithfully observe and perform any provision of this ordinance.
E. The insurance policy and bond obtained by the company in compliance
with this section must be written by an insurance company with an
A.M. Best rating of "A" or better and shall be approved by the Borough
Council and a certificate of insurance as evidence of the company's
insurance policy and the performance bond, including written evidence
of the payment of required premiums, shall be filed and maintained
with the Borough Manager/Secretary during the term of this ordinance.
F. All expenses of the above-noted insurance and bond shall be paid
by the company.
The company shall:
A. Provide each school designated by the Borough, fire station, public
library and Borough building, and such public auditoriums and institutions
as are requested by the Borough with a single drop and basic service
without charge. Additional drops and service will be charged to the
facility by the company at cost to the company of time and material
only.
B. Comply with the present and future rules and regulations of the FCC
in connection with and relating to the construction, operation and
maintenance of its cable system.
C. Education access channel. The company shall maintain one specially
designated channel for use by the Interboro School District and provide
at no cost a character generator for its exclusive use.
D. Local government access channel. The company shall maintain one specially
designated channel for Glenolden Borough municipal use at the Borough
Building or other place the Borough may designate and provide at no
cost a character generator and television monitor for their exclusive
use.
E. Public access/leased access channel. The company shall maintain at
least one specially designated, noncommercial public access/leased
access channel available on a first-come, nondiscriminatory basis.
In addition, other portions of its non-broadcast bandwidth, including
unused portions of the specially designated channels, shall be available
for leased uses. On at least one of the public access/leased channels,
priority shall be given to part-time users.
F. At no time shall the company monitor the viewing habits of its customers
without the express permission of said customers. Pursuant to the
Cable Communications Policy Act of 1984, the Cable Television Consumer
Protection and Competition Act of 1992 and the Telecommunications
Act of 1996 hereinafter referred to as the "Cable Act," all personally
identifiable information is used solely for the normal business purpose
of offering and rendering cable television service to the customer.
The company will not disclose personally identifiable information
without permission of the customer.
G. Make its best effort to carry on its system the signals of all stations
significantly viewed in Delaware County, Pennsylvania, these to include
all local network and education VHF stations and local UHF stations,
and in addition, no less than two distant commercial stations.
H. Continue to provide, without charge to the Borough, the company's
high-speed Internet access service at up to five locations within
the Borough Building. Such locations shall be determined by the Borough
Manager/Secretary.
I. Supply and install, at no cost to the customer, a closed-captioned
device when requested by the hearing impaired.
The company shall make cable service available, when permitted
by the property owner, to all residents in private housing in the
Borough subject to all provisions of this ordinance.
The company must obtain a permit from the Borough to provide
segments of subscribers any specialized service that will not be available
to all subscribers. All requests shall demonstrate that the service
is not contrary to the public interest and will not affect the company's
ability to deliver service to other users and subscribers.
A. The Borough shall not prohibit or limit any program or any class
or type of program or otherwise control the communications or signals
transmitted by the company or impose discriminatory or preferential
fees in any manner that would tend to encourage or discourage programming
of any particular nature, directly or indirectly, and shall not promulgate
any regulation that would interfere with the right of free speech
by means of the company's provision of cable television services.
B. The company shall not prohibit or limit any program or class or type
of program presented over a leased channel or any channel made available
for public access or educational purposes.
In the event of expiration, cancellation or transfer of the
franchise, the company shall be required to continue to operate the
system until an orderly change of operation is effectuated, and shall
be subject to an accounting for net earnings or losses during this
interim period.
A. The company was represented throughout the negotiations of the franchise
by its own attorneys and has had opportunity to consult with its own
attorneys about its rights and obligations regarding the franchise.
In consideration of the grant of the franchise to the company, the
company hereby waives any claim which it may have with respect to
the issuance of and/or the terms and conditions of the franchise ordinance.
In consideration of the grant of the franchise to the company, the
company also releases the Borough and any of its elected officials,
employees, representatives, agents, servants, including attorneys,
from any claims it may have, known or unknown; including, without
limitation, claims arising under Pennsylvania Law, the Cable Act,
the ordinance and Charter of the Borough of Glenolden and/or the requirements
of federal, state or municipal law, including the Constitutions of
the United States and of Pennsylvania. However, the foregoing release
shall not apply to any claims which the company may have with respect
to the terms and conditions of this ordinance where substantially
the same terms and conditions of other cable television franchises
have been held invalid by a binding and final judgment of the United
States or Pennsylvania Supreme Courts.
B. The company shall compensate the Borough Solicitor reasonable attorney's
fees for services rendered on behalf of the Borough in connection
with this ordinance up to a maximum of $5,000.
A. The Company shall indemnify and hold the Borough and its agents harmless
at all times during the term of this franchise from any and all claims
alleged to be caused by the Company's construction, installation,
operation or maintenance of any structure, equipment, wire or cable
authorized to be installed pursuant to the franchise or in the exercise
of any of its rights under this franchise. Upon receipt of notice
in writing from the Borough, the company shall at its own expense
defend any such actions or proceedings. Indemnified expenses shall
include, without limitation, all out-of-pocket expenses, such as reasonable
attorneys' fees; and
(1)
Requests for relief arising out of any claim for invasion of
the right of privacy for defamation of any person, firm or corporation;
for the violation of infringement of any copyright, trademark, trade
name, service mark or patent; or of any other right of any person
or corporation, excluding claims arising out of or relating to the
Borough's own programming and leased access; and
(2)
Any and all claims arising out of the company's failure
to comply with the provisions of this franchise ordinance or any federal,
state or local law, ordinance or regulation applicable to the company
or the CATV System; and
(3)
Any and all claims which the company may now or hereafter have
or claim to have against the Borough, its servants, agents, attorneys,
representatives, employees or officials, due to or arising out of
damage to any of the company's property or equipment, including,
without limitations, the resulting or consequential loss of income,
injury to reputation, or any other resulting or consequential damages
of any kind, caused by or resulting from negligent acts or omissions
of the Borough or any of its servants, agents, attorneys, representatives,
employees or officials; and
(4)
Any and all disputes arising out of a claim wherein damages
or other relief is sought as a result of the Borough's cable
communications franchising procedure or as a result of the renewal
of the cable communications franchise, or as a result of the Borough's
award or failure to award a franchise to any other person, partnership,
corporation or other legal entity.
B. If suit be brought or threatened against the Borough, either independently
or jointly with the company, arising out of the company's installation,
construction, operation or maintenance of the cable television system,
or with any other person or municipality, the company, upon notice
given by the Borough, shall defend the Borough at the cost of the
company. If final judgment is obtained against the Borough, either
independently or jointly with the company or any other defendants,
the company shall indemnify the Borough and pay such judgment with
all costs and satisfy and discharge the same.
C. In order for the Borough to assert its rights to be indemnified,
defended or held harmless, the Borough must:
(1)
Promptly notify the company of any claim or legal proceeding
which give rise to such right;
(2)
The Borough shall afford the company the opportunity to participate
in and fully control any compromise, settlement or other resolution
or disposition of such claim or proceeding, unless, however, the Borough,
in its sole discretion, determines that its interests cannot be represented
in good faith by the company; and
(3)
The Borough shall fully cooperate with the reasonable requests of the company in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to Subsection
C(2) above.
D. The Borough reserves the right to cooperate with the company and
participate in the defense of any litigation either through intervention
or otherwise. The company shall pay upon receipt of written demand
from the Borough all expenses incurred by the Borough in defending
itself with regard to any matters in this section. These expenses
shall include, but not be limited to, attorneys' fees and the
reasonable value of services (as determined by the Borough) rendered
by the Borough or any of its employees, officials, attorneys, servants,
agents or representatives.
E. The Borough is in no manner or means waiving any governmental immunity
it may enjoy or any immunity for its agents, officials, servants,
attorneys, representatives and/or employees .
F. The company shall make no settlement in any matter identified above
without the Borough's written consent, which shall not be unreasonably
withheld. Failure to inform the Borough of settlement shall constitute
a breach of this franchise ordinance and the Borough may seek any
redress available to it against the company.
G. If the Borough awards any additional communications franchise in
any future franchise process to a firm other than the company, then
the company agrees that it will not bring, or cause to be brought,
any action, suit or other proceeding claiming damages, or seeking
any other relief against the Borough, its elected officials, officers,
boards, commissions, employees, representatives, servants, agents
or attorneys for any award of a franchise made in conformity with
this ordinance, Pennsylvania Law, the Cable Communications Policy
Act of 1984, Cable Television Consumer Protection and Competition
Act of 1992 and the Telecommunications Act of 1996.
H. All rights of the Borough pursuant to indemnification, insurance,
letter of credit or performance bond(s), as provided for by this ordinance,
are in addition to all other rights the Borough may have under this
ordinance or any other ordinance, rule, regulation or law.
I. The Borough's exercise of or failure to exercise any rights
pursuant to any section of this ordinance shall not affect in any
way the right of the Borough subsequently to exercise any such rights
or any other right of the Borough under this ordinance or any other
ordinance, rule, regulation or law.
J. It is the purpose of this section to provide maximum indemnification
to the Borough under the terms and conditions expressed and, in the
event of a dispute, this section shall be construed (to the greatest
extent permitted by law) to provide for the indemnification of the
Borough by the company.
In connection with its cable services and the terms and conditions
of this ordinance, the company shall, within 60 days after the effective
date of this ordinance, provide the Borough a one-time franchise grant
in the amount of $2,500.
A. To the extent that the Federal Communications Commission shall terminate
controls in any area pertinent to this ordinance, this ordinance may
be amended by the Borough Council with the consent of the company.
B. If any section, subsection, sentence, clause, phrase or portion of
this ordinance is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holdings
shall not affect the validity of the remaining portions hereof.
For the purpose of this ordinance, all terms, phrases, words
and their derivations shall have the meanings set forth in the Cable
Act unless the context clearly indicates that another meaning is intended.