A.
No cable communication system shall be allowed to
provide multichannel service to the Borough residents without a franchise.
The Borough reserves the right to build, own and operate such systems
as it deems appropriate.
B.
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.
The franchise shall be granted under the terms and
conditions contained herein, consistent with the Borough Code and/or
other applicable statutory requirements.
D.
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.
E.
State of the art continuing obligation.
(1)
General reguirement. 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 conforms
to the state of the art in accordance with the requirements set forth
in the franchise agreement; provided, however, that "state of the
art" shall be presumed to mean such technology that is being provided
to at least 1/4 of all cable households nationwide.
(2)
State of the art report. Except as may be required
in the franchise agreement, 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 such matters as
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
affiliate 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 affiliate 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 affiliate 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 any report from a franchisee required pursuant to the franchise
agreement and this section of this chapter, the Borough will evaluate
such report and may 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)
System upgrade. As more specifically provided in the
franchise agreement, after a system has been evaluated, the Borough
and the franchisee may meet to determine to what extent the system
needs to be upgraded to incorporate state of the art features. In
the event that the Borough and the franchisee are unable to agree
upon whether it is economically and technically feasible and viable
for the franchisee to upgrade the system to incorporate state of the
art features, the issue shall be settled by arbitration administered
by the American Arbitration Association in accordance with its applicable
rules, and judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
(5)
"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 has 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, throughout
the term of the franchise.
(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, pole attachment agreement
and other applicable laws, including, but not limited to, the Federal
Technical Performance Standards, National Electrical Safety Code (current
edition) and the pole attachment and underground conduit agreement.
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.
Except as may be provided in a franchise agreement,
any transfer of a franchise shall conform to the following provisions:
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 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 § 72-18 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.
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 § 72-32 of this chapter and shall entitle the Borough to all of the rights set forth under § 72-32.
A.
Because the Borough finds that the streets of the
county, state and Borough to be used by the grantee in the operation
of this 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.
The grantee shall reimburse the Borough in an amount
equal to the reasonable costs and expenses which the Borough incurs
for the services of third parties (including, but not limited to,
attorneys and other consultants) in connection with any renegotiation,
transfer, amendment or other modification of this chapter or the franchise
(where such action is specifically initiated by the grantee or an
affiliated person at such time and in such manner as the Borough Manager
shall specify. Payments of such costs and expenses shall not be deemed
to be "franchise fees" within the meaning of Section 622 of the Cable
Act (47 U.S.C. § 542), and such payments shall not be deemed
to be payments-in-kind or involuntary payments chargeable against
any other compensation to be paid to the Borough by the grantee.
C.
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 a rate of 1.5% per month,
compounded for each month that the franchise fee payment is late.
D.
The franchise fee shall be payable as specified in
the franchise agreement and shall commence as of the effective date
of the franchise. The Borough shall be furnished at the time of each
payment with a statement certified by the grantee's certified public
accountant or other appropriate corporate representative reflecting
the total amounts of gross revenues for the period conveyed by the
payment.
E.
The Borough shall have the right to inspect the grantee's
income records upon 15 days' written notice 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. One audit per
year shall be at the expense of the franchisee. 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.
Except as may be provided in any franchise agreement,
revocation or acceleration of an expiration date of any franchise
shall be subject to the following provisions:
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 willfully 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;
or
(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; or
(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 the grantee.
Notwithstanding 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 force majeure. 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 this 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 Council meeting agenda.
The Borough shall cause to be served upon such grantee at least 30
days prior to the date of such 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 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 Council, the Council shall
direct the grantee to comply within such time and manner and upon
such terms and conditions as are reasonable.
(4)
Enforcement is subject to applicable federal and state
law. In the event that the Borough, after such meeting, determines
that the grantee is in default of any provision of the franchise,
the franchising authority may:
(a)
Foreclose on all or part of any security deposit
provided under the franchise, if any, including, without limitation
any bonds or other surety; provided, however, that the foreclosure
shall only be in such manner and in such amount as the Borough reasonably
determines is necessary to remedy the default.
(b)
Commence an action at law for monetary damages
or seek other equitable relief.
(c)
In the case of a substantial default of material
provision of the franchise, declare the chapter and franchise agreement
to be revoked.
(d)
Seek specific performance of any provision.
(e)
Seek any other legal or equitable remedies as
may be available to the franchising authority.
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.
(3)
Order that the system be transferred to another cable
operator.
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 this chapter.
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 the grantee to the Borough
pursuant to this chapter and the franchise agreement shall be to the
Borough Manager 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 advise
the Borough of such address and toll free telephone numbers and any
changes thereto.
