[HISTORY: Adopted by the Borough Council
of the Borough of Greencastle 10-7-1996 by Ord. No. 1996-3 (Ch. 13, Part 2, of
the 1985 Code). Amendments noted where applicable.]
A.Â
Borough of Greencastle ("Borough"), pursuant to applicable
federal and state law, is authorized to grant one or more nonexclusive
franchises to construct, operate, maintain and reconstruct cable television
systems within Borough limits.
B.Â
The Borough Council finds that the development of
cable television systems has the potential of having great benefit
and impact upon the residents of the Borough. Because of the complex
and rapidly changing technology associated with cable television,
the Borough Council further finds that the public convenience, safety
and general welfare can best be served by establishing regulatory
powers which should be vested in Borough or such persons as Borough
shall designate. It is the intent of this chapter and subsequent amendments
to provide for and specify the means to attain the best possible cable
television service to the public and any franchises issued pursuant
to this chapter shall be deemed to include this finding as an integral
part thereof.
For the purpose of this chapter, the following
terms, phrases, words and their derivations shall have the meaning
given herein. Words used in the present tense include the future,
words in the plural number include the singular number and words in
the singular number include the plural number. All capitalized terms
used in the definition of any other term shall have their meaning
as otherwise defined in this section. The words "shall" and "will"
are mandatory and "may" is permissive. Words not defined shall be
given their common and ordinary meaning.
The services such as the transmissions of all
leased access signals not included in basic subscriber service, nonlocal
broadcast signals and pay television signals.
Services not involving the transmission of signals,
including rental of equipment, training services and all other services
which may be provided by grantee to residential subscribers.
Any service tier which includes the retransmission of local
television broadcast signals.
Borough of Greencastle, Franklin County, Pennsylvania, a
Pennsylvania municipal corporation, including all areas within its
existing boundaries and territory hereafter acquired or annexed.
The person, department, committee or agency designated by
the Council in a contemporaneous resolution to act for it in certain
matters relating to cable television; or otherwise the Council itself.
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, 98 Stat. 2779 (1984) [codified at 47 U.S.C. §§ 521-611
(1982 & Supp. V 1987)] as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. No. 102-385 and Pub.
L. No. 104-101, 110 Stat. 56 et seq. (1996), and as may, from time
to time, be amended.
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 a community,
but such term does not include:
A facility that serves only to retransmit the
television signals of one or more television broadcast stations;
A facility that serves subscribers without using
any public rights-of-way;
A facility of a common carrier which is subject,
in whole or in part, to the provisions of 47 U.S.C. §§ 201-226,
except that such facility shall be considered a cable system to the
extent such facility whether on a common carrier basis or otherwise
is used in the transmission of video programming directly to subscribers
unless the extent of such use is solely to provide interactive on-demand
services;
An open video that complies with § 653
of the Communications Act of 1934, as amended; or
Any facilities of any electric utility used
solely for operating its electric utility system.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as defined by the Federal Communications Commission.
A subscriber who receives services in connection with a business,
trade, profession or institution.
An electric device which converts cable signals to a frequency
receivable by a television receiver.
The governing body of the Borough of Greencastle.
An initial authorization, or renewal thereof, issued by Borough,
whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a cable system.
A franchise granted pursuant to this chapter, containing
the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
Any tax, fee or assessment of any kind imposed by Borough
or other governmental entity on a grantee or cable subscriber, or
both, solely because of their status as such. The term "franchise
fee" does not include:
Any tax, fee or assessment of general applicability
(including any such tax, fee or assessment imposed on both utilities
and cable operators or their services but not including a tax, fee
or assessment which is unduly discriminatory against cable operators
or cable subscribers);
Capital costs which are required by the franchise
agreement to be incurred by the cable operator for public, educational
or governmental access facilities;
Requirements or charges incidental to the awarding
or enforcing of the franchise, including payments for bonds, security
funds, letters of credit, insurance, indemnification, penalties or
liquidated damages; or
Any fee imposed under Title 17 of the United
States Code.
The governing body of the Borough of Greencastle.
Any person receiving a franchise pursuant to this chapter
and its agents, employees, officers, designees or any lawful successor,
transferee or assignee.
The Borough of Greencastle, as represented by the governing
body or any delegate acting within the scope of its jurisdiction.
Any and all cash, credits, property or other consideration
of any kind or nature received annually, directly or indirectly by
the franchisee, its affiliates or any person in which the franchisee
has a financial interest, or by any other entity that is a cable operator
of the system arising from, attributable to, or in any way derived
from the provisions by the franchisee of cable service in the Borough,
including the studios and other facilities associated therewith. Gross
annual revenues include, but are not limited to, monthly fees charged
subscribers for any basic, optional, premium, per-channel or per-program
service; installation, disconnection, reconnection and change-in-service
fees; leased channel fees; late fees and administrative fees; fees,
payments or other consideration received from programmers for carriage
of programming on the system; revenues from converter rentals or sales;
studio and production equipment rental; advertising revenues; barter
other than revenues derived from barter with any not for profit entity;
revenues from program guides; and revenues from home shopping and
bank-at-home channels. Gross annual revenues shall not include any
taxes on services furnished by the franchisee which are imposed directly
on any subscriber or user by the state, Borough or other governmental
unit which are collected by the franchisee on behalf of said governmental
unit, nor shall it include revenue derived from the sale or rental
of real property interests of franchisee.
Any connection to the system or use of the cable services
that is not authorized by the grantee or that is otherwise prohibited
by law.
The area of the Borough which will receive cable service
initially, as set forth in any franchise agreement.
The connection of the system to subscribers' terminals and
the provision of cable service.
Any channel designed for commercial lease.
Any channel where the Council or other local governments
or agencies are the designated programmers.
Any channel where grantee is the programmer.
Observing a one-way communications signal, where the observer
is neither the subscriber nor the programmer, whether the signal is
observed by visual or electronic means for any purpose whatsoever.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours or as otherwise specified in the franchise agreement.
Those services which are within the control of grantee. Those
conditions which are not within the control of grantee include, but
are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages and severe or unusual weather conditions
and significant legislative or regulatory requirements. Those conditions
which are ordinarily within the control of grantee include, but are
not limited to, special promotions, pay-per-view events, regular peak
or seasonal demand periods and maintenance or upgrade of the system.
The ordinances of the Borough of Greencastle.
The delivery to subscribers, over the cable communications
system, of television signals for a fee or charge to subscribers over
and above the charge for basic subscriber service, on a per-program,
per-channel or other subscription basis.
Any natural person or any association, firm, individual,
partnership, joint stock company, joint venture, trust, corporation,
limited liability company or other legally recognized entity, private
or public, whether for-profit or not-for-profit.
Any channel which is available only to subscribers who possess
equipment or receive signals of the appropriate frequency.
Any person, firm, corporation, institution or entity who
or which produces or otherwise provides program material for distribution
to subscribers by means of the cable communications system.
Any channel where any member of the general public may be
a programmer.
A subscriber who receives service in an individual dwelling
unit where the service is not in connection with a business, trade,
profession or institution.
Any section, subsection or provision of this chapter.
Any channel so arranged electronically as to be available
only to subscribers who possess special decoding equipment in order
to receive a usable signal.
The entire geographic area within the Borough as it is not
constituted or may in the future be constituted, unless otherwise
specified in the franchise agreement.
The loss of picture or sound on one or more cable channels
affecting at least 10% of the subscribers on the system.
The State of Pennsylvania.
Each of the following which have been dedicated to the public
or are hereafter dedicated to the public and maintained under public
authority or by others and located within Borough limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public property and areas that the Borough
shall permit to be included within the definition of "street" from
time to time.
Any person who or which lawfully elects to subscribe to,
for any purpose, a cable service provided by grantee by means of or
in connection with the cable system and who pays the charges therefor,
except such persons or entities authorized to receive a cable service
without charge as described in the franchise agreement.
Each extension wiring from grantee's distribution lines to
a subscriber's point of use.
A franchise granted by Borough under the provisions
of this chapter shall encompass the following purposes:
A.Â
To engage in the business of providing cable service
and such other services as may be permitted by the franchise agreement.
B.Â
To erect, install, construct, repair, rebuild, reconstruct,
replace, maintain and retain cable lines, related electronic equipment,
supporting structures, appurtenances and other property in connection
with the operation of a cable system in, on, over, under, upon, along
and across streets or other public places within the designated service
area.
C.Â
To maintain and operate said franchise properties
for the origination, reception, transmission, amplification and distribution
of television and radio signals for the delivery of cable services
and any other services permitted by the franchise agreement.
D.Â
To set forth the obligations of a grantee under the
franchise agreement.
It shall be unlawful for any person to construct,
install or operate a cable television system in the Borough within
any street without a properly granted franchise awarded pursuant to
the provisions of this chapter.
A.Â
A franchise granted hereunder shall be for a term
established in the franchise agreement, commencing on Borough's adoption
of an ordinance or resolution authorizing the franchise.
B.Â
A franchise granted hereunder may be renewed upon
application by grantee pursuant to the provisions of applicable state
and federal law and of this chapter.
Any franchise shall be valid within all the
territorial limits of the Borough, and within any area added to the
Borough during the term of the franchise, unless otherwise specified
in the franchise agreement.
A.Â
This chapter shall be construed in a manner consistent
with all applicable federal and state laws.
B.Â
In the event that the state or federal government
discontinues preemption in any area of cable communications over which
it currently exercises jurisdiction in such manner as to expand rather
than limit municipal regulatory authority, grantor may, if it so elects,
adopt rules and regulations in these areas to the extent permitted
by law.
C.Â
This chapter shall apply to all franchises granted
or renewed after the effective date of this chapter. It shall further
apply to the extent permitted by applicable federal or state law to
all existing franchises granted prior to the effective date of this
chapter.
D.Â
Grantee's rights are subject to the police powers
of the Borough to adopt and enforce ordinances necessary to the health,
safety and welfare of the public. The grantee shall comply with all
applicable general laws and ordinances enacted by the Borough pursuant
to that power. However, the grantor acknowledges that the provisions
of the franchise agreement constitute a valid and enforceable contract
between the parties. Grantor will undertake no unilateral action that
materially changes the franchise agreement; subject, however, to the
police powers of the grantor to take action necessary to the health,
safety and welfare of the public.
E.Â
The grantee shall not be relieved of its obligation
to comply with any of the provisions of this chapter or any franchise
granted pursuant to this chapter by reason of any failure of the Borough
to enforce prompt compliance.
F.Â
This chapter and any franchise granted pursuant to
this chapter shall be construed and enforced in accordance with the
substantive laws of the State of Pennsylvania.
A.Â
The grantee shall not sell, transfer, lease, assign,
sublet or dispose of, in whole or in part, either by forced or involuntary
sale, or by ordinary sale, consolidation or otherwise, the franchise
and/or cable system or any of the rights or privileges granted by
the franchise, without the prior consent of the Council, which consent
shall not be unreasonably denied or delayed and shall be denied only
upon a good-faith finding by the Borough that the proposed transferee
lacks the legal, technical or financial qualifications to perform
its obligations under the franchise agreement. Any attempt to sell,
transfer, lease, assign or otherwise dispose of the franchise and/or
cable system without the consent of the Council shall be null and
void. This provision shall not apply to sales of property or equipment
in the normal course of business. No consent from the Borough shall
be required for a transfer in trust, mortgage or from instrument of
hypothecation, in whole or in part, to secure an indebtedness, or
for a pro forma transfer to a corporation, partnership or other entity
controlling, controlled by or under common control with the grantee.
B.Â
The following events shall be deemed to be a sale,
assignment or other transfer of the franchise and/or cable system
requiring compliance with this section: the sale, assignment or other
transfer of all or a majority of the grantee's assets; the sale, assignment
or other transfer of capital stock or partnership, membership or other
equity interests in the grantee by one or more of its existing shareholders,
partners, members or other equity owners so as to create a new controlling
interest in the grantee; the issuance of additional capital stock
or partnership, membership or other equity interest by the grantee
so as to create a new controlling interest in the grantee; and the
entry by the grantee into an agreement with respect to the management
or operation of the grantee and/or the system. The term "controlling
interest" as used herein means majority equity ownership of the grantee.
C.Â
In the case of any sale or transfer of ownership of
any franchise and/or cable system, the Borough shall have 120 days
to act upon any request for approval of such sale or transfer that
contains or is accompanied by such information as is required in accordance
with other reasonable information as Borough, in its sole discretion,
may request. If the Borough fails to render a final decision on the
request within 120 days from receipt by the Borough of all required
information, such request shall be deemed granted unless the requesting
party and the Borough agree to an extension of time.
D.Â
The grantee shall notify the grantor in writing of
any foreclosure or any other judicial sale of all or a substantial
part of the franchise property of the grantee or upon the termination
of any lease or interest covering all or a substantial part of said
franchise property. Such notification shall be considered by the grantor
as notice that a change in control of ownership of the franchise has
taken place and the provisions under this section governing the consent
of the grantor to such change in control of ownership shall apply.
E.Â
For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the grantor may inquire into the qualifications of the prospective transferee or controlling party and the grantee shall assist the grantor in any such inquiry. In seeking the grantor's consent to any change of ownership or control, the grantee shall have the responsibility of insuring that the transferee completes an application in form and substance reasonably satisfactory to the grantor, which application shall include the information required under state and federal law as well as Subsection B(1) through (8) of § 99-12 of this chapter. An application, acceptable to the Borough, shall be submitted to the grantor not less than 60 days prior to the date of transfer. The transferee shall be required to establish that it possesses the legal, technical and financial qualifications to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If, after considering the legal, financial, character and technical qualities of the applicant and determining that they are satisfactory, the Borough finds that such transfer is acceptable, the Borough shall transfer and assign the rights and obligations of such franchise. The consent of the Borough to such transfer shall not be unreasonably denied.
F.Â
Any financial institution having a pledge of the grantee
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 designee satisfactory to the Borough shall take control
of and operate the cable television system, in the event of a grantee
default in its financial obligations. Further, said financial institution
shall also submit a plan for such operation within 30 days of assuming
such control that will insure continued service and compliance with
all franchise requirements 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 in its discretion and during said period
of time it shall have the right to petition the Borough to transfer
the franchise to another grantee.
A.Â
The grantee shall design, construct and maintain the
cable television system to have the capability to pass every dwelling
unit in the service area, subject to any line extension requirements
of the franchise agreement.
B.Â
After service has been established by activating trunk
and/or distribution cables for any part of the service area, the grantee
shall provide cable service to any requesting subscriber within that
service area within 30 days from the request; provided, that the grantee
is able to secure all rights-of-way necessary to extend service to
such subscriber within such thirty-day period on reasonable terms
and conditions where economically feasible. Economic feasibility shall
be defined as installation costs within 150% of the average cost of
service installation, as demonstrated by the cable operator.
Any franchise granted shall be nonexclusive.
The Borough specifically reserves the right to grant, at any time,
such additional franchises for a cable television system or any component
thereof, as if deems appropriate, subject to applicable state and
federal law; provided, however, that no franchise shall be granted
on terms materially less burdensome or more favorable than any other
franchise granted hereunder.
A.Â
The grantor may grant one or more franchises for a
service area. The grantor may, in its sole discretion, limit the number
of franchises granted, based upon, but not necessarily limited to,
the requirements of applicable law and specific local considerations,
such as:
(1)Â
The capacity of the public rights-of-way to accommodate
multiple coaxial cables in addition to the cables, conduits and pipes
of the utility systems, such as electrical power, telephone, gas and
sewerage.
(2)Â
The impact on the community of having multiple franchises.
(3)Â
The disadvantages that may result from cable system
competition, such as the requirement for multiple pedestals on residents'
property and the disruption arising from numerous excavations of the
rights-of-way.
(4)Â
The financial capabilities of the applicant and its
guaranteed commitment to make necessary investment to erect, maintain
and operate the proposed system for the duration of the franchise
term.
B.Â
Each grantee awarded a franchise to serve the entire
Borough shall offer service to all residences in the Borough, in accordance
with construction and service schedules mutually agreed upon between
the grantor and the grantee and consistent with applicable law.
C.Â
Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two cable systems in accordance with the provisions of § 99-18.
D.Â
The grantor may require that any new grantee be responsible
for its own underground trenching and the costs associated therewith,
if, in the grantor's opinion, the rights-of-way in any particular
area cannot feasibly and reasonably accommodate additional cables.
E.Â
Any additional franchise granted by the Borough to
provide cable service in a part of the Borough in which a franchise
has already been granted and where an existing grantee is providing
service shall require the new grantee to provide service throughout
its service area within a reasonable time and in a sequence which
does not discriminate against lower-income residents.
A.Â
Any person desiring an initial franchise for a cable
television system shall file an application with the Borough. A reasonable
nonrefundable application fee established by the Borough shall accompany
the application or renewal application. Such application fee shall
not be deemed to be "franchise fees" within the meaning of § 622
of the Cable Act (47 U.S.C. § 542) and such payments shall
not be deemed to be:
B.Â
An application for an initial franchise for a cable
television system shall contain, where applicable:
(1)Â
A statement as to the proposed franchise and service
area.
(2)Â
Resume of prior history of the applicant, including
the legal, technical and financial expertise of the applicant in the
cable television field.
(3)Â
List of the partners, general and limited, of the
applicant, if a partnership, or the percentage of stock owned or controlled
by each shareholder, if a corporation.
(4)Â
List of officers, directors and managing employees
of the applicant, together with a description of the background of
each such person.
(5)Â
The names and addresses of any parent or subsidiary
of applicant or any other business entity owning or controlling applicant
in whole or in part, or owned or controlled in whole or in part by
the applicant.
(6)Â
A current financial statement of the applicant verified
by a CPA audit or otherwise certified to be true, complete and correct
to the reasonable satisfaction of the Borough.
(7)Â
Proposed construction and service schedule.
(8)Â
Any additional information that the Borough deems
applicable.
A.Â
Upon receipt of any application for an initial franchise,
the Manager shall prepare a report and make his recommendations respecting
application to the Borough Council.
B.Â
A public hearing shall be set prior to any initial
franchise grant, at a time and date approved by the Council. Within
30 days after the close of the hearing, the Council shall make a decision
based upon the evidence received at the hearing as to whether or not
the franchise(s) should be granted, and, if granted, subject to what
conditions. The Council may grant one or more initial franchises,
or may decline to grant any franchise.
Franchise renewals shall be in accordance with
applicable law including, but not necessarily limited to, the Cable
Communication Act, as amended. The grantor and grantee, by mutual
consent, may enter into renewal negotiations at any time during the
term of the franchise.
Except as otherwise provided in the franchise
agreement, the grantee shall maintain an office or offices to provide
the necessary facilities, equipment and personnel to comply with the
following consumer protection standards under normal operating conditions
excluding periods of system outage and monthly billing cycles:
A.Â
Cable system office hours and telephone availability.
(1)Â
The grantee will maintain a local, toll-free or collect
call telephone access line which will be available to its subscribers
24 hours a day, seven days a week.
(a)Â
Trained grantee representatives will be available
to respond to customer inquiries during normal business hours.
(b)Â
After normal business hours, the access line
may be answered by a service or an automated response system, including
an answering machine. Inquiries received after normal business hours
must be responded to by a trained grantee representative on the next
business day.
(2)Â
Under normal operating conditions, telephone answer
time by a customer representative, including wait time, shall not
exceed 30 seconds when the connection is made. If the call needs to
be transferred, transfer time shall not exceed 30 seconds. These standards
shall be met no less than 90% of the time under normal operating conditions,
measured on a quarterly basis.
(3)Â
The grantee will not be required to acquire equipment
or perform surveys to measure compliance with the telephone answering
standards above unless a historical record of complaints indicates
a clear failure to comply.
(4)Â
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time.
(5)Â
Customer service center and bill payment locations
will be open at least during normal business hours and will be conveniently
located.
B.Â
Installations, outages and service calls. Under normal
operating conditions, each of the following four standards will be
met no less than 95% of the time measured on a quarterly basis:
(1)Â
Standard installations will be performed within seven
business days after an order has been placed. "Standard" installations
are those that are located up to 125 feet from the existing distribution
system.
(2)Â
Excluding conditions beyond the control of the grantee,
the grantee will begin working on "service interruptions" promptly
and in no event later than 24 hours after the interruption becomes
known. Grantee must begin actions to correct other service problems
the next business day after notification of the service problem.
(3)Â
At the subscriber's request, the "appointment window"
alternatives for installations, service calls and other installation
activities will be at a specific time or within a maximum four-hour
time block during normal business hours. (The grantee may schedule
service calls and other installation activities outside of normal
business hours for the express convenience of the customer.)
(4)Â
The grantee may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled
appointment.
(5)Â
If the grantee's representative is running late for
an appointment with a customer and will not be able to keep the appointment
as scheduled, the customer will be contacted. The appointment will
be rescheduled, as necessary, at a time which is convenient for the
customer.
C.Â
Communications between the grantee and cable subscribers.
(1)Â
Notifications to subscribers.
(a)Â
The grantee shall provide written information
on each of the following areas at the time of installation of service,
at least annually, to all subscribers, and at any time upon request:
[1]Â
Products and services offered.
[2]Â
Prices and options for programming services
and conditions of subscription to programming and other services.
[3]Â
Installation and service maintenance policies.
[4]Â
Instructions on how to use the cable service.
[5]Â
Channel positions programming carried on the
system.
[6]Â
Billing and complaint procedures, including
the address and telephone number of the Borough's cable office.
(b)Â
Customers will be notified of any change in
rates, programming services or channel positions as soon as possible
through announcements on the cable system and in writing. Notice must
be given to subscribers a minimum of 30 days in advance of such change
if the change is within the control of the grantee. In addition, the
grantee shall notify subscribers 30 days in advance of any significant
change in the other information required by the preceding subsection.
The grantor may, in its sole discretion, waive this requirement on
a case-by-case basis.
(2)Â
Billing.
(a)Â
Bills will be clear, concise and understandable.
Bills must be fully itemized, with itemizations including, but not
limited to, basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
(b)Â
In case of a billing dispute, the grantee must
respond to a written complaint from a subscriber within 30 days.
(c)Â
Should the grantee choose, or be required, to
print the Borough's telephone number on the bills, the grantee shall
print the Borough's telephone number in such a manner that it is clearly
known to be that of the Borough and is not easily confused with the
grantee's telephone number. This is intended to go by clarity for
the grantee's customers and to attempt to avoid numerous unnecessary
phone calls for both the customers and the Borough.
(4)Â
Credits. Credits for service will be issued no later
than the customer's next billing cycle following the determination
that a credit is warranted.
The grantee shall not disseminate information
as to the names, addresses or telephone numbers of subscribers or
any subscriber information furnished in connection with the request
for service, except in conformity with § 361 of the Cable
Act; subject, however, to the right of the Borough to audit the records
of the grantee to establish compliance with this chapter and with
any franchisee agreement.
The Borough reserves the right to regulate rates
for basic cable service and any other services offered over the cable
system, to the extent not prohibited by federal or state law. The
grantee shall be subject to the rate regulation provisions provided
for herein, and those of the Federal Communications Commission (FCC)
at 47 CFR Part 76.900, Subpart N. The Borough shall follow the rules
relating to cable rate regulation promulgated by the FCC at 47 CFR
Part 76.900, Subpart N.
A.Â
Following the issuance and acceptance of a franchise,
the grantee shall pay to the Borough a franchise fee in the amount
set forth in the franchise agreement.
B.Â
The Borough, on an annual basis, shall be furnished
a statement within 60 days of the close of the calendar year, certified
by an officer of the grantee or audited by a certified public accountant,
reflecting the total amounts of gross annual revenues and all payments
and computations for the previous calendar year. Upon 10 days' prior
written notice, the grantor shall have the right to conduct an independent
audit of the grantee's records, in accordance with generally accepted
accounting principles and if such audit indicates a franchise fee
underpayment of 5% or more, the grantee shall assume all reasonable
costs of such an audit.
C.Â
Except as otherwise provided by law, no acceptance
of any payment by the Borough shall be construed as a release or an
accord and satisfaction of any claim the Borough may have for further
or additional sums payable as a franchise fee under this chapter or
any franchise agreement or for the performance of any other obligation
of the grantee.
D.Â
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 an annual rate equal to the
prime lending rate plus 1Â 1/2% during the period for which payment
was due.
E.Â
Franchise fee payments shall be made in accordance
with the schedule indicated in the franchise agreement.
A.Â
The grantee shall not construct any cable system facilities
until the grantee has secured the necessary permits from the grantor
or other cognizant public agencies.
B.Â
In those areas of the Borough where transmission or
distribution facilities of all the public utilities providing the
telephone and electric power service are underground, the grantee
likewise shall construct, operate and maintain its transmission and
distribution facilities therein underground.
C.Â
In those areas of the Borough where the grantee's
cables are located on the aboveground transmission or distribution
facilities of the public utility providing telephone or electric power
service and in the event that the facilities of both such public utilities
subsequently are placed underground, then the grantee likewise shall
construct, operate and maintain its transmission and distribution
facilities underground, at the grantee's cost. Certain of the grantee's
equipment, such as pedestals, amplifiers and power supplies, which
normally are placed above ground, may continue to remain in aboveground
closures.
D.Â
In new residential developments in which all the electric
power and telephone utilities are underground, the following procedure
shall apply with respect to access to and utilization of underground
easements:
(1)Â
The developer shall be responsible for contacting
and surveying all franchised cable operators to ascertain which operators
desire (or, pursuant to the terms and provisions of this chapter and
any franchise agreement, may be required) to provide cable service
to that development. The developer may establish a reasonable deadline
to receive cable operator responses. The final development map shall
indicate the cable operators that have agreed to serve the development.
(2)Â
If one or two cable operators wish to provide service,
they shall be accommodated in the joint utilities trench on a nondiscriminatory
shared basis. If fewer than two operators indicate interest, the developer
shall provide conduit to accommodate two sets of cable television
cables and dedicate to the Borough any initially unoccupied conduit.
The developer shall be entitled to recover the cost of such initially
unoccupied conduit in the event that the grantor subsequently leases
or sells occupancy or use rights to any grantee.
(3)Â
The developer shall provide at least 10 working days'
notice of the date that utility trenches will be open to the cable
operators that have agreed to serve the development. When the trenches
are open, cable operators shall have two working days to begin the
installation of their cables and five working days after beginning
installation to complete installation.
(4)Â
The final development map shall not be approved until
the developer submits evidence that:
(a)Â
It has notified each grantee that underground
utility trenches are to open as of an estimated date, and that the
grantee will be allowed access to such trenches, including trenches
from proposed streets to individual homes or home sites, on specified
nondiscriminatory terms and conditions.
(b)Â
It has received a written notification from
each grantee that the grantee intends to install its facilities during
the open trench period on the specified terms and conditions, or such
other terms and conditions as are mutually agreeable to the developer
and the grantee, or has received no reply from a grantee within 10
days after its notification to such grantee, in which case the grantee
will be deemed to have waived its opportunity to install its facilities
during the open trench period.
(5)Â
Sharing the joint utilities trench shall be subject
to compliance with state regulatory agency and utility standards.
If such compliance is not possible, the developer shall provide a
separate trench for the cable television cables, with the entire cost
shared among the participating cable operators. With the concurrence
of the developer, the affected utilities and the cable operators,
alternative installation procedures, such as the use of deeper trenches,
may be utilized, subject to applicable law.
E.Â
Any cable operator wishing to serve an area where
the trenches have been closed shall be responsible for its own trenching
and associated costs and shall repair all property to the condition
which existed prior to such trenching.
F.Â
In the event that more than one franchise is awarded,
the Borough reserves the right to limit the number of drop cables
and/or pedestals per residence, or to require that the drop cable(s)
and/or pedestal(s) be utilized only by the cable operator selected
by the resident to provide service.
A.Â
The grantee shall construct, install, operate and
maintain its system in a manner consistent with all applicable laws,
ordinances, construction standards, governmental requirements, Federal
Communications Commission technical standards and any standards set
forth in its franchise agreement. In addition, the grantee shall provide
to the Borough, upon request, a written report of the results of the
grantee's periodic proof of performance tests conducted pursuant to
Federal Communications Commission standards and guidelines.
B.Â
Repeated and verified failure to maintain specified
technical standards shall constitute a material franchise violation.
C.Â
All construction practices shall be in accordance
with all applicable sections of the Occupational Safety and Health
Act of 1970, as amended, as well as all other applicable local, state
and federal laws and regulations.
D.Â
All installation of electronic equipment shall be
in accordance with the provisions of the National Electrical and Safety
Code and National Electrical Code, as amended, and as may from time
to time be amended.
E.Â
Antennae and their supporting structures (towers)
shall be painted, lighted, erected and maintained in accordance with
all applicable rules and regulations of the Federal Aviation Administration
and all other applicable local, state and federal laws and regulations.
F.Â
All of the grantee's plant and equipment, including,
but not limited to, the antenna site, headend and distribution system,
towers, house connections, structures, poles, wire, coaxial cable,
fixtures and appurtenances, shall be installed, located, erected,
constructed, reconstructed, replaced, removed, repaired, maintained
and operated in accordance with good engineering practices, performed
by experienced maintenance and construction personnel so as not to
endanger or interfere with improvements the Borough may deem appropriate
to make or to interfere in any manner with the rights of any property
owner, or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic.
G.Â
The grantee shall at all times employ ordinary care
and shall install and maintain in use commonly accepted methods and
devices preventing failures and accidents which are likely to cause
damage, injury or nuisance to the public.
[Amended 9-7-2021 by Ord. No. 2021-05]
The grantee shall have the authority to trim
trees, in accordance with all applicable utility restrictions, ordinance
and easement restrictions, upon and hanging over streets, alleys,
sidewalks and public places of the Borough so as to prevent the branches
of such trees from coming in contact with the wires and cables of
the grantee. Borough representatives shall have authority to supervise
and approve all trimming of trees conducted by the grantee. No trimming
shall be done without first obtaining an annual permit from the Borough
of Greencastle Borough Council, except minor trimming of trees that
is performed in accordance with the specifications of the Borough
Council and that does not result in a substantial change in appearance
of the trees.
The Borough shall have the right to install
and maintain, free of charge, upon the poles and within the underground
pipes and conduits of the grantee, any wires and fixtures desired
by the Borough for the use of the Borough and any other public institutions
or not-for-profit entities in the Borough, other than for a competitive
cable system, to the extent that such installation and maintenance
does not interfere with operations of the grantee.
Cablecasting shall be offered pursuant to the
Communications Act of 1934, as amended. Programming decisions will
be at the sole discretion of the grantee; however, all local commercial
and public broadcast services, as directed by the Federal Communications
Commission, will be provided, as well as such governmental and educational
access channels agreed to in any agreement established under this
chapter. All notices of channel changes, program changes and rate
changes will be provided to the Borough at least 30 days prior to
their implementation, or as otherwise directed by federal rules and
regulations.
A.Â
The grantee shall indemnify, hold harmless, release
and defend the Borough, its officers, boards, commissions, agents
and employees as provided in the franchise agreement.
B.Â
The Borough shall promptly notify the grantee of any
claims subject to indemnification by the grantee and shall cooperate
with all reasonable requests by the grantee for information, documents,
testimony or other assistance appropriate to a resolution of such
claims. The grantee shall have full responsibility for and control
of any action or undertaking directed at the resolution of such claims.
The grantee shall provide insurance as specified
in the franchise agreement.
A.Â
The grantee shall at all times maintain:
(1)Â
A full and complete set of plans, records and "as-built"
maps showing the location of the cable television system installed
or in use in the Borough, exclusive of subscriber service drops and
equipment provided in subscribers' homes.
(2)Â
If requested by the grantor, a summary of service
calls, identifying the number, general nature and disposition of such
calls, on a monthly basis. A summary of such service calls shall be
submitted to the Borough within 30 days following its request in a
form reasonably acceptable to the Borough.
B.Â
Upon 48 hours' written notice, and during normal business
hours, the grantee shall permit examination by any duly authorized
representative of the Borough, of all franchise property and facilities,
together with any appurtenant property and facilities of the grantee
situated within or without the Borough, and all records relating to
the franchise; provided, they are necessary to enable the Borough
to carry out its regulatory responsibilities under local, state and
federal law, this chapter and the franchise agreement. Such records
include all books, records, maps, plans, financial statements, service
complaint logs, performance test results, records of request for service
and other like materials of the grantee. The grantee shall have the
right to be present at any such examination.
C.Â
If any of the records described in the previous subsection
are proprietary in nature or must be kept confidential by state, federal
or local law, upon proper request by the grantee, such information
obtained during such an inspection shall be treated as confidential,
making it available only to those persons who must have access to
perform their duties on behalf of the Borough including, but not limited
to, the Division of Finance, the Law Department and Council members.
To the extent any federal requirement for privacy applies to the information
to be submitted, said law shall control.
D.Â
Copies of all petitions, applications, communications
and reports submitted by the grantee or on behalf of or relating to
the grantee to the Federal Communications Commission, Securities and
Exchange Commission, or any other federal or state regulatory commission
or agency having jurisdiction with respect to any matters affecting
the cable system authorized pursuant to this chapter and any franchise
shall be made available to the Borough upon request. Copies of responses
from the regulatory agencies to the grantee shall likewise be furnished
to the Borough upon request.
E.Â
All reports required by the Cable Act under this chapter,
except those required by law to be kept confidential, shall be available
for public inspection in the grantee's offices during normal business
hours.
A.Â
The grantee shall submit a written end-of-the-year
report to the grantor with respect to the preceding calendar year
containing the following information:
(1)Â
A summary of the previous year's (or in the case of
the initial reporting year, the initial year's) activities in development
of the cable system, including but not limited to services begun or
discontinued during the reporting year.
(2)Â
A list of the grantee's officers, members of its board
of directors and other principals of the grantee.
(3)Â
A list of stockholders or other equity investors holding
5% or more of the voting interest in the grantee.
(4)Â
Information as to the number of subscribers and the
number of basic and pay service subscribers.
(5)Â
The Borough, including its agents and representatives,
shall have the authority, during normal business hours, to arrange
for and conduct an inspection of annual reports required pursuant
to this chapter or a franchise agreement. The Borough shall give the
grantee 24 hours' written notice of the inspection request. If the
requested information is proprietary in nature or must be kept confidential
by state, federal or local law, upon proper request by the grantee,
such information obtained during such an inspection shall be treated
as confidential, making it available only to those persons who must
have access to perform their duties on behalf of the Borough including,
but not limited to, the Division of Finance, the Law Department and
Council members. To the extent any federal requirement for privacy
applies to the information to be submitted, said law shall control.
B.Â
All reports and records required under this chapter
shall be furnished at the sole expense of the grantee, except as otherwise
provided in this chapter or the franchise agreement.
C.Â
The grantee shall, throughout the life of the franchise,
keep the Borough fully informed with respect to the matters specified
above, and the failure to disclose such information during the life
of the franchise.
If the grantee fails to perform in a timely
manner any material obligation required by this chapter or a franchise
granted hereunder, following notice from the Borough and an opportunity
to cure such nonperformance, the grantor may act to remedy such violation
in accordance with the following procedures:
A.Â
The grantor shall notify the grantee of any alleged
material violation in writing by personal delivery or registered or
certified mail, and demand correction within a reasonable time, which
shall not be less than 10 days in the case of the failure of the grantee
to pay any sum or other amount due the Borough under this chapter
or the grantee's franchise and 30 days in all other cases.
B.Â
If the grantee fails either to correct the violation
within the time prescribed or to commence correction of the violation
within the time prescribed and thereafter diligently pursue correction
of such violation, the Borough shall then give written notice of not
less than 14 days of a public hearing to be held before the Council.
Said notice shall specify the violations alleged to have occurred.
C.Â
At the public hearing, the Council shall hear and
consider relevant evidence and thereafter render findings and its
decision. In the event the Council finds that a material violation
exists and that the grantee has not corrected the same in a satisfactory
manner or has not diligently commenced correction of such violation
after notice thereof from the grantor and is not diligently proceeding
to fully remedy such violation, the Council may revoke the franchise
or impose any other penalty permitted by the franchise committee.
In the event the grantee's performance of any
of the terms, conditions or obligations required by this chapter or
a franchise granted hereunder is prevented by a cause or event not
within the grantee's control, such inability to perform shall be deemed
excused and no penalties or sanctions shall be imposed as a result
thereof. For the purpose of this section, causes or events not within
the control of the grantee shall include, without limitation, acts
of God, strikes, sabotage, riots or civil disturbances, restraints
imposed by order of a governmental agency or court, failure or loss
of utilities, explosions, acts of public enemies and natural disasters
such as floods, earthquakes, landslides and fires.
A.Â
In the event that the use of any property of the grantee
within the franchise area or a portion thereof is discontinued for
a continuous period of 12 months, the grantee shall be deemed to have
abandoned that franchise property.
B.Â
The grantor, upon such terms as the grantor may impose,
may give the grantee permission to abandon, without removing, any
system facility or equipment laid, directly constructed, operated
or maintained under the franchise. Unless such permission is granted
or unless otherwise provided in this chapter, the grantee shall remove
all abandoned aboveground facilities and equipment upon receipt of
written notice from the grantor and shall restore any affected street
to its former state at the time such facilities and equipment were
installed so as not to impair its usefulness. In removing its plant,
structures and equipment, the grantee shall refill, at its own expense,
any excavation that shall be made by it and shall leave all public
ways and places in as good condition as that prevailing prior to such
removal without materially interfering with any electrical or telephone
cable or other utility wires, poles or attachments. The grantor shall
have the right to inspect and approve the condition of the public
ways, public places, cables, wires, attachments and poles prior to
and after removal. The liability, indemnity and insurance provisions
of this chapter and any security fund provided in the franchise shall
continue in full force and effect during the period of removal and
until full compliance by the grantee with the terms and conditions
of this section.
C.Â
Upon abandonment of any franchise property in place,
the grantee, if required by the Borough, shall submit to the grantor
an instrument, satisfactory in form to the Borough, transferring to
the Borough the ownership of the franchise property abandoned.
D.Â
At the expiration of the term for which the franchise
is granted, or upon its revocation or earlier expiration, as provided
for herein, in any such case without renewal, extension or transfer,
the Borough shall have the right to require the grantee to remove,
at its own expense, all aboveground portions of the cable television
system from all streets and public ways within the Borough within
a reasonable period of time, which shall not be less than 180 days.
E.Â
Notwithstanding anything to the contrary set forth
in this chapter, the grantee may abandon any underground franchise
property in place so long as it does not materially interfere with
the use of the street or public rights-of-way in which such property
is located or with the use thereof by any public utility or other
cable grantee.
Upon expiration or revocation of the franchise,
the Borough shall have discretion to permit and/or require the grantee
to continue to operate the cable television system for an extended
period of time not to exceed six months from the date of such expiration
or revocation. The grantee shall continue to operate the system under
the terms and conditions of this chapter and the franchise and to
provide the regular subscriber service and any and all of the services
that may be provided at that time.
A.Â
A franchise granted hereunder shall, at the option
of the grantor, cease and terminate 120 days after 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 other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
said 120 days, or unless:
(1)Â
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 granted
pursuant hereto, and the receivership or trustees within said 120
days shall have remedied all the faults under the franchise or provided
a plan for the remedy of such faults which is satisfactory to the
Borough; and
(2)Â
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 granted.
B.Â
In case of a foreclosure or other judicial sale of
the franchise property, or any material part thereof, the grantor
may serve notice of termination upon the grantee and the successful
bidder at such sale, in which the event the franchise granted and
all rights and privileges of the grantee hereunder shall cease and
terminate 30 days after service of such notice, unless:
A.Â
In addition to any rights specifically reserved to
the Borough by this chapter, the Borough reserves to itself every
right and power which is required to be reserved by a provision of
any ordinance or under the franchise.
B.Â
The Borough shall have the right to waive any provision
of the franchise, except those required by federal or state regulation,
if the Borough determines that it is in the public interest to do
so, and that the enforcement of such provision will impose an undue
hardship on the grantee or the subscribers. To be effective, such
waiver shall be evidenced by a statement in writing signed by a duly
authorized representative of the Borough. Waiver of any provision
in one instance shall not be deemed a waiver of such provision subsequent
to such instance nor be deemed a waiver of nay other provision of
the franchise unless the statement so recites.
A.Â
The grantee shall not deny service, deny access or
otherwise discriminate against subscribers, channel users or general
citizens on the basis of race, color, religion, national origin, age
or gender. The grantee shall comply at all times with all other applicable
federal, state and local laws and regulations relating to nondiscrimination.
B.Â
The grantee shall adhere to the applicable equal employment
opportunity requirements of federal, state and local regulations,
as now written or as amended from time to time.
C.Â
Neither the grantee nor any person, agency or entity
shall, without the subscriber's consent, tap or arrange for the tapping
of any cable, line, signal input device or subscriber outlet or receiver
for any purpose except routine maintenance of the system, detection
of unauthorized service, polling with audience participating or audience
viewing surveys to support advertising research regarding viewers
where individual viewing behavior cannot be identified.
D.Â
In the conduct of providing its services or in pursuit
of any collateral commercial enterprise resulting therefrom, the grantee
shall take reasonable steps to prevent the invasion of a subscriber's
or general citizen's right of privacy or other personal rights through
the use of the system as such rights are delineated or defined by
applicable law. The grantee shall not, without lawful court order
or other applicable valid legal authority, utilize the system's interactive
two-way equipment or capability for unauthorized personal surveillance
of any subscriber or general citizen.
E.Â
No cable line, wire amplifier, converter or other
piece of equipment owned by the grantee shall be installed by the
grantee in the subscriber's premises, other than in appropriate easements,
without first securing any required consent. If a subscriber requests
service, permission to install upon subscriber's property shall be
presumed. Where a property owner or his predecessor has granted an
easement including a public utility easement or a servitude to another
and the servitude by its terms contemplates a use such as the grantee's
intended use, the grantee shall not be required to obtain the written
permission of the owner for the installation of cable television equipment.
In the event of a conflict between any provision
of this chapter and a franchise agreement entered into pursuant to
it, the provisions of this chapter shall control, except as may be
specifically otherwise provided in the franchise agreement.
If any provision of this chapter is held by
any court or by any federal or state agency of competent jurisdiction
to be invalid as conflicting with any federal or state law, rule or
regulation now or hereafter in effect, or is held by such court or
agency to be modified in any way in order to conform to the requirements
of any such law, rule or regulation, such provision shall be considered
a separate, distinct and independent part of this chapter, and such
holding shall not affect the validity and enforceability of all other
provisions hereof. In the event that such law, rule or regulations
is subsequently repealed, rescinded, amended or otherwise changed,
so that the provision hereof which had been held invalid or modified
is no longer in conflict with such law, rule or regulation, said provision
shall thereupon return to full force and effect and shall thereafter
be binding on the grantor and the grantee; provided, that the grantor
shall give the grantee 30 days' written notice of such change before
requiring compliance with said provision or such longer period of
time as may be reasonably required for the grantee to comply with
such provision.
