A.
In the event that the Township shall grant to a grantee
a nonexclusive revocable franchise to construct, operate, and maintain a cable
communications system within the Township, said franchise shall constitute
both a right and an obligation to provide the services of a cable communications
system as regulated by the provisions of this chapter and a franchise agreement.
C.
Any franchise granted by the Township is hereby made
subject to the general ordinance 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 Township regarding permits, fees
to be paid, or manner of construction.
D.
State-of-the-art continuing obligation.
(1)
General requirements. Throughout the term of any franchise
agreement, the franchisee shall construct, operate, maintain and upgrade the
cable communications system in order to ensure that it continuously conforms
to the state of the art in accordance with the requirements set forth hereinbelow.
In addition, the franchisee, either on its own initiative or at the reasonable
request of the Township, shall participate in or undertake experiments, tests,
and other activities to enhance and advance the state of the art of cable
communications systems' technology.
(2)
State-of-the-art report. A franchisee shall provide to
the Township, in a form satisfactory to the Township, at the Township's request,
but no more often than once every year, a report setting forth the franchisee's
review and assessment of the current state of the art of cable communications
systems and its plans, if any, for upgrading the system to conform to the
state of the art. The report shall address, at a minimum: technological advances
making possible enhanced signal quality, publicly available equipment for
the receipt of services or greater channel capacity and interactive systems;
a list of each jurisdiction in which new technologies have been or are being
used and a description of the experience those jurisdictions have had with
such new technologies; an assessment of the costs associated with implementing
such new technologies into the system; the franchisee's activities to enhance
or advance such technology in connection with the system and any other cable
communications system or systems operated by the franchisee or any affiliated
person in the Township or elsewhere and the franchisee's compliance with and
any modifications with respect thereto; an assessment of the need to scramble
signals distributed over the system in order to prevent theft of service (such
assessment to investigate alternatives to scrambling of signals and include
a cost/benefit analysis of both scrambling and such alternatives that takes
into account significant costs and benefits both to the franchisee and subscribers);
a discussion of additional technological advances anticipated during the remainder
of the term of the franchise, along with a projection of the costs and timetable
for the franchisee offering such advances as part of or over the system; a
discussion of what improvements the franchisee anticipates making in its customer
service facilities, equipment, systems and operations during the remainder
of the term of the franchise, along with a projection of the costs and timetable
for the implementation of such improvements; a description of any technical
experimentation which the franchisee or any affiliated person anticipates
undertaking during the remainder of the term of the franchise; an assessment
of the compatibility of the system with subscribers' televisions and video
cassette recorders, the franchisee's compliance with the rules and regulations
promulgated by the FCC pursuant to Section 624A of the Cable Act (47 U.S.C.
§ 544a) and any experimentation the franchisee is making to enhance
such compatibility; and, generally, the steps the franchisee or any affiliated
person is undertaking to continuously construct, operate, maintain and upgrade
the system in accordance with the state of the art. The state-of-the-art report
submitted by a franchisee may be only one resource that the Township will
consider in evaluating the franchisee's obligation pursuant to the terms and
conditions of the chapter to continuously construct, operate, maintain and
upgrade the system in accordance with the state of the art, and the Township
may commission third parties, as necessary, to ascertain the current state
of the art in cable communications systems generally.
(3)
Procedures for maintaining state of the art. Upon receiving
the report from a franchisee required pursuant to this section of the chapter,
the Township will evaluate such report and assemble any additional data necessary
to ascertain whether the franchisee's system or any aspect thereof needs to
be upgraded so that it meets the state-of-the-art requirements set forth herein.
(4)
Directive. Upon completing the evaluation contemplated
by this section of the chapter, and after providing notice to a franchisee
and an opportunity for the franchisee to comment, the Township may issue a
reasonable directive to the franchisee to upgrade the system so as to incorporate
state-of-the-art features. Within 45 days after receipt of such directive,
such franchisee shall submit plans, as specified by the Township, describing
how it intends to complete such upgrade. Upon approval of such plans by the
Township, the franchisee shall commence and diligently pursue implementation
of the required upgrade.
(5)
"State-of-the-art" or "state of the art," as applicable,
means the 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:
(a)
Through technology which has been demonstrated in actual applications
(not simply through tests or experiments) to operate in a workable manner;
and
(b)
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 Township, 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 Township such wires, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments
and other property equipment as are necessary to the operation of the cable
communications systems; provided, however, that grantee complies with all
design, construction, safety, and performance provisions contained in this
chapter, the franchise agreement, and other applicable laws, including but
not limited to the Federal Technical Performance Standards, National Electrical
Safety Code (current edition) and the power company and telephone company
pole contract standards.
No poles shall be erected by a grantee without prior approval of the
Township with regard to location, height, type and any other pertinent aspect.
However, no location of any pole of the grantee shall be a vested right and
such poles shall be removed or modified by the grantee at its own expense
whenever the Township determines that the public convenience would be enhanced
thereby. Grantee shall utilize existing poles and conduits, where possible.
The Township shall have the right, during the life of the franchise, to install
and maintain free of charge upon the poles owned by the grantee, any wire
and pole fixtures that do not unreasonably interfere with the operations of
the grantee.
No cable communications system shall be allowed to occupy or use the
streets of the Township 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 Township.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The Township specifically reserves the right to:
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 Township, and then only under such reasonable conditions as the Township
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 Township 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 Township shall notify the franchisee
as soon as all of the information required by the FCC, the franchise agreement,
this chapter and all applicable state and local laws has been received by
the Township and that therefore the petition is complete, after which the
Township shall take action within 120 days following the date such notice
is provided by the Township, pursuant to Section 617(e) of the Cable Act.
C.
For the purpose of determining whether it shall consent
to a transfer, the Township 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 Township as
part of said inquiry shall be grounds for denial of the proposed transfer.
If the Township 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 Township that it or its designees satisfactory to the Township 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 Township at its discretion, and during said period of time
it shall have the right of petition for transfer of the franchise to another
grantee. If the Township 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 Township will
transfer and assign the rights and obligations of such franchise as in the
public interest. The consent of the Township to such transfer shall not be
unreasonably withheld.
E.
The consent or approval of the Township to any transfer
of the grantee shall not constitute a waiver or release of the rights of the
Township 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 Township reserves the right to review the purchase price of any transfer or assignment of the cable television system. Any negotiated sale value which the Township deems unreasonable will not be considered in the rate base for any subsequent request for rate increases, if permitted by applicable law and § 56-16 of this chapter.
G.
Any approval by the Township of transfer of ownership
or control shall be contingent upon the prospective controlling party becoming
a signatory to the franchise agreement.
H.
Except as otherwise provided in Subsection D above, the Township reserves the right of first purchase in any transfer of the system. Should the Township exercise this option, it shall do so within 30 days of notification and thereafter shall make payment therefor under the same terms and conditions as the proposed transferee, or as the parties might otherwise agree.
I.
The transfer of any franchise or the transfer of control or controlling interest in any system, franchise or franchisee without the prior written consent of the Township shall be deemed to be an abandonment of the system by the franchisee under § 56-33C of this chapter and shall entitle the Township to all of the rights set forth under § 56-33C.
A.
Because the Township finds that the streets of the county,
state and Township to be used by the grantee in the operation of its system
within the boundaries of the franchise area are valuable public properties
acquired and maintained by the county, state and Township at great expense
to its taxpayers; and the grant to the grantee to the 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 Township additional regulatory
responsibility and expense; and the presence of the grantee and its facilities
places additional burdens upon the Township administration and road departments
and the volunteer fire company serving the area which is supported by the
Township, a grantee of any franchise hereunder shall pay to the Township a
franchise fee in an amount as designated in the franchise agreement up to
the maximum amount permitted under applicable federal, state or local law.
The present maximum franchise fee allowable is 5% of gross annual revenues.
B.
In the event that any franchise fee payment or recomputed
amount is not made on or before the dates specified in the franchise agreement,
grantee shall pay as additional compensation an interest charge, computed
from such due date, at the annual rate equal to the commercial prime interest
rate of the Township's primary depository bank during the period that such
unpaid amount is owed.
C.
The franchise fee shall be payable as specified in the
franchise agreement and shall commence as of the effective date of the franchise.
The Township shall be furnished at the time of each payment with a statement
certified by the grantee's chief financial officer reflecting the total amounts
of gross revenues for the period conveyed by the payment.
D.
The Township shall have the right to inspect the grantee's
income records and the right to audit and to recompute any amounts determined
to be payable under this chapter for a period of five years from the date
of payment. Audits shall be at the expense of the Township unless the audit
discloses an underpayment in any one year of 5% or more, in which case the
costs of the audit shall be borne by the grantee. Any additional amount due
the Township as a result of the audit shall be paid within 30 days following
written notice to the grantee by the Township, which notice shall include
a copy of the audit report unless written notice of disagreement is filed
by the grantee with the Township within such time.
A.
Grounds for revocation or acceleration of expiration
date. The Township 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 chapter 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 Township 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 Township
or any subscriber.
(5)
If it is determined that the grantee underpaid its franchise
fee by 15% or more for any year.
(6)
If the grantee's construction schedule is delayed later
than the schedule contained in the agreement or beyond any extended date set
by the Township.
(7)
If there is any 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 of 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 officials, or
approving the petition in any such proceedings; or
(d)
Any order, judgment or decree is entered in any proceedings against
a grantee decreeing the voluntary or involuntary dissolution of the grantee.
B.
Effect of circumstances beyond control of grantee. Notwithstanding
any other provisions of this chapter or the franchise agreement, a grantee
shall not be liable for delay in performance of, or failure to perform in
whole or in part, its obligations pursuant to the franchise agreement or this
chapter, due to strike, war or act of war (whether an actual declaration of
war is made or not), insurrection, riot, act of public enemy, accident, fire,
flood or other act of God, sabotage or other events, where a grantee has exercised
all due care in the prevention thereof and to the extent that such causes
or other events are beyond the control of the grantee and such causes or events
are without the fault or negligence of the grantee. In the event that any
such delay in performance or failure to perform affects only part of a company's
capacity to perform, the company shall perform to the maximum extent that
it is able to do so and shall take all steps within its power to correct such
cause or causes. In correcting such cause or causes, a grantee shall take
all reasonable steps to do so in as expeditious a manner as possible. A grantee
shall notify the Township in writing of the occurrence of an event covered
by this subsection within five business days of the date upon which the grantee
learns of its occurrence. Shortage or unavailability of equipment from suppliers
shall not be deemed to be beyond the control of the grantee in regard 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 Township shall comply with any related
court orders.
D.
Procedure prior to revocation.
(1)
The Township 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 Township may place its request for revocation of the franchise
upon a regular Board meeting agenda. The Township shall cause to be served
upon such grantee, at least seven days prior to the date of such Board 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 Township once,
at least seven days before such meeting, in a newspaper of general circulation
within the Township.
(2)
The Board 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 Board, the Board shall direct the grantee
to comply within such time and manner and upon such terms and conditions as
are reasonable.
(4)
If the Board shall determine such failure, refusal, or
neglect by the grantee was without just cause, then the Board may, by resolution,
declare that the franchise of the grantee shall be revoked and the performance
bond forfeited.
E.
Disposition of facilities. In the event a franchise expires,
is revoked or otherwise terminated, the Township may, in its sole discretion,
do any of the following:
(1)
Order the removal of the system facilities from the Township
within a reasonable period of time as determined by the Township;
(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.
F.
Restoration of property. In removing its plant, structures
and equipment, the grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places in as
god a condition or better as that prevailing prior to the grantee's removal
of its equipment and appliances without affecting the electrical or telephone
cable wires or attachments. The Township shall inspect and approve the condition
of the public ways and public places and cables, wires, attachments, and poles
after removal. The liability, indemnity, insurance and performance bond as
provided herein shall continue in full force and effect during the period
of removal and until full compliance by the grantee with the terms and conditions
of this subsection, this chapter and the franchise agreement.
G.
Restoration by Township; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection E or F of this section, or any other work required by Lower Frederick law or ordinance within the time as may be established and to the satisfaction of the Township, the Township may cause such work to be done and the grantee shall reimburse the Township the cost thereof within 30 days after receipt of an itemized list of such costs or the Township may recover such costs through the performance bond or letter of credit provided by grantee. The Township shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
A.
Termination by insolvency. The franchise granted hereunder
shall, at the option of the Township, cease and terminate 120 days after the
appointment of a receiver or receivers or trustee or trustees to take over
and conduct the business of the grantee whether in a receivership, reorganization,
bankruptcy or similar action or proceeding unless such receivership or trusteeship
shall have been vacated prior to the expiration of said 120 days, or unless:
(1)
Such receivers or trustees shall have, within 120 days
after their election or appointment, fully complied with all the terms and
provisions of this chapter and the franchise agreement, and the receivers
or trustees within said 120 days shall have remedied all defaults under this
chapter or the franchise agreement; and
(2)
Such receivers or trustees shall, within said 120 days,
execute an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be bound
by each and every term, provision and limitation of the franchise agreement
and the chapter.
B.
Termination by judicial action. In the case of a foreclosure
or other judicial sale of the plan, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the Township 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:
A.
All notices from grantee to the Township pursuant to
this chapter and the franchise agreement shall be to the Township Manager
or his designee at the following address:
|
Lower Frederick Township
Box 253
Zieglerville, PA 19492
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B.
Grantee shall maintain with the Township, throughout
the term of the franchise, an address for service of notices by mail. Grantee
shall also maintain with the Township a local office and telephone number
for the conduct of matters related to the franchise during normal business
hours. The grantee shall be required to advise the Township of such address
and telephone numbers and any changes thereof.
