Borough of Malvern, PA Cable Television Franchise

This franchise is granted pursuant to, and subject to franchisee's compliance with, all applicable federal, state and Borough regulations. No Borough regulations are waived or amended hereby, except for Chapters 80 and A227 of the Borough Code.

All construction work involving disturbance of Borough streets or other public or private property shall be completed promptly and shall be completed in accordance with the provisions of § A227-15 only upon restoration at the franchisee's expense of the disturbed area(s) to a condition equaling or exceeding the preconstruction condition, to the satisfaction of the Borough or private property owner, and approved by the Borough Engineer.

Prior to erection of any towers, poles or conduits or the construction, upgrade or rebuild of a cable communications system authorized under this chapter, the franchisee shall first submit for approval to the Borough and other designated parties in accordance with applicable municipal ordinances, a concise description of the facilities proposed to be erected or installed, including engineering drawings, if required, together with a map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, underground conduit or fixture or any rebuilds or upgrading of the cable communications system shall be commenced by any person until such approval therefor has been received from the Borough.

All safety practices required by law shall be used during construction, maintenance and repair of a cable system. A franchisee shall not place facilities, equipment or fixtures where they will interfere with any gas, electric, telephone, water, sewer or other utility facilities or obstruct or hinder in any manner the various utilities serving the residents of the Borough or their use of any street or any other public right-of-way.

Any contractor proposed for work or construction, installation, operation, maintenance or repair of system equipment must be properly licensed under laws of the state and all applicable local ordinances.

All poles, lines, structures and other facilities of the franchisee in, over and under the streets, sidewalks, alleys, easements and other public grounds or places within the Borough shall be kept by the franchisee at all times in a safe and substantial condition.

A franchisee shall, on the request of any person holding a building moving permit issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the franchisee shall have the authority to require such payment in advance, except in the case where the requesting person is the Borough, in which case no such payment shall be required. The franchisee shall be given not less than five calendar days' advance notice to arrange for such temporary wire changes.

Location of system facilities.

A franchisee shall use, with the owner's permission, existing underground conduits or overhead utility facilities whenever feasible and may not erect poles in public rights-of-way without the express permission of the Borough. Copies of agreements for use of conduits or other facilities shall be filed with the Borough request.

Use of existing facilities.

The franchisee shall have the right, authority, power and privilege to attach any system facilities to any existing or future poles, towers or other electrical facilities owned by the Borough in a manner which will not interfere with the use of such poles, towers and other electrical facilities by the Borough.

The franchisee agrees to pay to the Borough that fee per year per pole owned by the Borough and used by the franchisee arrived at by negotiation and contract with PECO Energy Co. and/or Bell Atlantic for the use of their poles or, if the two fees are dissimilar, the higher of the two, or, if no satisfactory agreement is reached with either utility, then said fee shall be $1.50 per pole per year.

The Borough shall have the right to install and maintain free of charge upon the poles owned by the franchisee any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the franchisee. The Borough shall hold the franchisee harmless from any and all actions, causes of action or damage caused by the placement of the Borough's wires or fixtures upon the poles owned by franchisee.

To the extent that existing poles or underground conduits are insufficient for its purposes, or if the franchisee is unable to negotiate agreements providing for use of existing utility facilities, the franchisee shall have the right to erect or construct and maintain its own such facilities as necessary for the construction and maintenance of its television distribution system, subject to the approval of the location by the Borough Engineer.

The Borough Engineer shall not approve the installation of new poles when, in his professional opinion, the installation of such new transmission facilities in underground conduit is feasible from an engineering standpoint. In addition, on streets where both electrical utility and telephone wiring are located underground, either at the time of initial construction of a cable system or at any time thereafter, a franchisee's cable shall also be located underground at the franchisee's expense. Between a street and a subscriber's residence, a franchisee's cable must be located underground if both electrical and telephone utility wiring are located underground. If either electric or telephone utility wiring is aerial, a franchisee may install aerial cable except where a property owner or resident requests underground installation and agrees to bear the additional cost of such installation over and above the cost of aerial installation.

All wires, cable lines and other transmission lines, equipment and structures shall be installed and located to cause minimum interference with the rights and convenience of property owners.

The Borough may issue and the franchisee shall comply with such rules and regulations concerning the installation and maintenance of a cable system installed in, on or over the streets, as may be consistent with this chapter.

(8)

A franchisee shall have the authority to trim trees that overhang a street of the Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee. At the option of the Borough, such trimming may be done by it or under its supervision and direction, at the expense of the franchisee.

Moving, removal or abandonment of facilities.

A franchisee shall, at its expense, and by a time specified by the Borough, protect, support, temporarily disconnect, relocate or remove any of its property when required by the Borough by reason of traffic conditions, public safety, street construction, street resurfacing or widening, change of street grade, installation of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of municipal, public utility improvements, street vacation or for any other purpose where the convenience of the Borough would be served thereby; provided, however, that the franchisee shall, in all such cases, have the privilege of abandoning any property in place. The Borough shall reimburse a franchisee under this subsection to the same extent that it reimburses telephone, electric and other like companies for such disconnection, relocation or removal.

If any removal, relaying or relocation is required to accommodate the construction, operation or repair of the facilities of another person that is authorized to use the public streets, a franchisee shall, after 30 days' advance written notice, take action to effect the necessary changes requested by that person. All costs to franchisee of any such removal, relaying or relocation of its facilities shall be absorbed by the person requesting same.

In the event of an emergency, or where a cable system creates or is contributing to an imminent danger to health, safety or property, the Borough may remove, relay or relocate that cable system without prior notice. When possible, the Borough will make reasonable efforts to notify the franchisee and give the franchisee reasonable opportunity to cure.

In the event that the use of any part of a cable system is discontinued for any reason for a continuous period of 12 months, or in the event that such system or property has been installed in any street without complying with the requirements of this chapter, or the franchise has been terminated or canceled or has expired, the franchisee, within 30 days after written notice by the Borough, shall commence removal from the streets of all such property as the Borough may require.

The Borough may extend the time for the removal of abandoned facilities for a period not to exceed 180 days.

In the event of such removal or abandonment, the franchisee shall restore the area to a condition satisfactory to the Borough.

Publicizing proposed construction work. The franchisee shall publicize significant proposed construction work at least one week prior to commencement of that work by causing written notice of such construction work to be delivered to the Borough Manager and by notifying those persons most likely to be affected by the work in at least two of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers or in any other manner reasonably calculated to provide adequate notice. In addition, before entering onto any person's property, the franchisee shall make reasonable efforts to contact the property owner or, in the case of residential property, the resident at least two days in advance. If the franchisee must enter premises, it must make reasonable efforts to schedule an appointment at the convenience of the owner or resident.

§ A227-9 Operation and reporting requirements.

[Amended 9-20-1994 by Ord. No. 94-6]

Open books and records. The Borough shall have the right to inspect and copy upon two weeks' written notice at any time during normal business hours all books, receipts, maps, plans, financial statements, contracts, service complaint logs, performance test results, records of requests for service and other reasonable material of the franchisee relating to the operation of the franchisee's cable system serving the Borough and which are required to perform its regulatory and compliance monitoring responsibilities under the terms of this chapter or applicable law.

Reports required. The franchisee shall file the following reports with the Borough at the Borough's request:

All reports required by the Federal Communications Commission (FCC), including but not limited to any proof of performance tests and results, equal employment opportunity (EEO) reports and all petitions, applications and communications of all types submitted by the franchisee to the FCC, the Securities and Exchange Commission (SEC) or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of franchisee's system.

An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year. Such report shall also contain any revisions to the system as-built maps filed with the Borough.

Construction reports will, upon request, be sent to the Borough bimonthly after the franchise is awarded for any construction undertaken during the term of the franchise until construction is complete, including any rebuild that may be specified under this chapter.

Proof of performance test results will be supplied to the Borough when sections of the system are rebuilt and as required in this chapter.

Technical tests required by the Borough as specified in this chapter will be submitted to the Borough promptly upon completion of such tests.

The following financial reports as specified hereunder and submitted, upon request, to the Borough 90 days after the end of the franchisee's fiscal year:

An ownership report, indicating all persons who at any time during the preceding year did control or benefit from an interest in the franchise of 5% or more.

An annual list of officers and members of the Board of Directors of the franchisee and any affiliates.

(c)

Such financial reports pertaining to the Borough, in the form(s) prescribed, as may be reasonably necessary and appropriate to the exercise by the Borough of its regulatory and compliance monitoring responsibilities.

The following system and operational annual report shall be submitted to the Borough upon request:

A report on the system's technical tests and measurements.

A report on programs and services offered by the franchisee.

(c)

An annual summary of the previous year's activities, including but not limited to subscriber totals for each category of service offered, including the number of pay units sold, new services offered and the amount collected annually from other users of the system and the character and extent of the service rendered thereto.

(d)

An annual summary of complaints received and handled.

(8)

The franchisee shall upon request prepare and furnish to the Borough at the time and in the form prescribed such additional reports with respect to its operation, affairs, transactions or property as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the Borough in connection with this chapter.

Records required.

The franchisee shall at all times maintain:

A record of all complaints received and interruptions or degradation of service experienced for the preceding period prior to a performance review.

A full and complete set of plans, records and as-built maps showing the exact location of all cable communications system equipment installed or in use in the Borough, exclusive of subscriber service drops.

The Borough may impose reasonable requests for additional information, records and documents from time to time.

Performance evaluation.

The Borough may, at its discretion, hold scheduled performance evaluation sessions annually. All such evaluation sessions shall be open to the public.

Special evaluation sessions may be held at any time during the term of the franchise at the request of the Borough.

All evaluation sessions shall be open to the public and announced in a newspaper of general circulation. The franchisee shall notify subscribers of all such evaluation sessions by announcement on a local origination channel on the system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.

Topics that may be discussed at any scheduled or special evaluation session may include but not be limited to system performance and construction, franchisee compliance with this chapter, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, if applicable, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings and line extensions.

During the review and evaluation by the Borough, the franchisee shall fully cooperate with the Borough and shall provide such information and documents as the Borough may need to reasonably perform its review.

§ A227-10 Consumer protection provisions.

[Amended 9-20-1994 by Ord. No. 94-6]

Customer service requirements. The franchisee shall comply with all applicable federal, state and local customer service requirements. Unless otherwise prohibited by law, the franchisee must satisfy the following requirements or such more stringent requirements as may be subsequently enacted by federal regulation.

The franchisee shall maintain a facility in reasonable proximity to the Borough that shall be open at least during normal business hours, which shall include evening hours and some weekend hours.

The franchisee shall render sufficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible.

The franchisee shall maintain adequate telephone lines and personnel to respond to subscriber complaints or inquiries and schedule service calls in a timely manner. The franchisee shall provide maintenance personnel sufficient to respond to area outages within six hours during the period from 8:00 a.m. through 4:00 p.m., seven days per week, excepting major outages due to storms, civil unrest or acts of God.

Service calls for maintenance or repairs shall be performed at no charge; provided, however, that if such maintenance or repair is required as a result of damage caused by a subscriber or as a result of the subscriber's personal equipment, including but not limited to television, VCR and remote controls, and in-home wiring, then the franchisee may charge a reasonable cost for time and material.

Notice of programming changes. The franchisee shall give at least 30 days' notice to subscribers and the Borough of any change in programming decisions or channel realignment.

Reconnection. The franchisee shall restore service to customers wishing restoration of service, provided that the customer shall first satisfy any previous obligations owed to the franchisee.

Disconnection. The franchisee shall charge subscribers to have cable service disconnected only in accordance with the provisions of the Cable Act. A refund of unused service charges shall be paid to the customer within 30 days from the date of termination of service.

Downgrade fees. The franchisee shall charge downgrade fees only in accordance with the provisions of the Cable Act.

Parental control option. The franchisee shall provide parental control devices to all subscribers who wish to be able to cut off any objectionable channel or channels of programming from the cable service entering the subscriber's home. The franchisee shall charge for this control option only in accordance with the provisions of the Cable Act.

§ A227-11 Franchise fees.

[Amended 9-20-1994 by Ord. No. 94-6]

Findings. The Borough finds that the streets and public rights-of-way of the county, state and Borough to be used by a franchisee for the operation of a cable system are valuable public property acquired and maintained by the county, state and Borough at great expense to the taxpayers. The Borough further finds that the grant of a franchise to use streets and public rights-of-way is a valuable property right without which a franchisee would be required to invest substantial capital. The Borough further finds that as a result of the grant of this franchise and regulation of same under this chapter, it will incur substantial costs.

Payment to Borough.

The Borough shall be paid a franchise fee in an amount no less than 5% of gross annual revenues. In the event that the maximum amount permitted under applicable law is greater than 5%, then the Borough reserves the right to reopen negotiations with the franchisee to address the greater amount, and any increase in the franchisee fee, to the maximum allowed by law.

To the extent not inconsistent with applicable law, the franchise fee is in addition to all other taxes and payments that the franchisee may be required to pay under any federal, state or local law and to any other tax, fee or assessment imposed by utilities and cable operators for use of their services, facilities or equipment.

To the extent not inconsistent with applicable law, payment of the franchise fee shall not be considered in the nature of a tax.

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 for the performance of any other obligation of the franchisee.

In the event that any franchise fee payment or recomputation amount is not made on or before the date specified herein, the franchisee shall pay additional compensation and interest charges computed from such due date, at an annual rate equal to the commercial prime interest rate of the Borough's primary depository bank during the period such unpaid amount is owed.

The franchise fee and any other costs assessed by the Borough against a franchisee shall be paid quarterly to the Borough 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 franchisee's chief financial officer or an independent certified public accountant reflecting the total amount of quarterly gross revenues for the payment period. Quarterly payments shall be made to the Borough no later than 45 days following the end of each calendar quarter. Quarter computation dates are the last days of the months of March, June, September and December. The Borough may require that an annual statement of gross revenues shall be furnished to the Borough by an independent, certified public accountant and that the franchisee shall provide an annual complete audit statement for each calendar year within 90 days from the end of that calendar year.

The Borough shall have the right to inspect and copy the franchisee's records as is necessary to verify the accuracy of the franchisee's franchise fee payments and other possible levied taxes, and the rights to audit and to recompute any amounts determined to be payable under this chapter for a period of four years from the date of payment. Audits shall be at the expense of the Borough unless the audit discloses an underpayment of greater that 5% of the entire amount determined to be payable for the period being audited, in which case the costs of the audit shall be borne by the franchisee as a cost incidental to the enforcement of the franchise. Any additional amounts due to the Borough as a result of the audit shall be paid within 30 days following written notice to the franchisee by the Borough of the underpayment, which notice shall include a copy of the audit report, unless written notice of disagreement is filed by the franchisee with the Borough within such time period. In the case of a dispute, the issue shall be resolved through binding arbitration in accordance with the procedures of the American Arbitration Association.

(8)

Franchisee shall maintain subscriber revenue records for customers within the franchise area on a separate basis. In addition, franchisee shall provide, upon request, such additional documentation as to enable the Borough to determine the accuracy of franchise fee revenue calculations.

§ A227-12 Insurance; surety; indemnification.

[Amended 9-20-1994 by Ord. No. 94-6]

Insurance required. The franchisee shall maintain and by its acceptance of this franchise specifically agrees that it will maintain, throughout the entire length of the franchise period, at least the following liability insurance coverage insuring the Borough and the franchisee: worker's compensation and employer liability insurance to meet all requirements of Pennsylvania law and comprehensive general liability insurance with respect to the construction, operation and maintenance of the cable system and the conduct of the franchisee's business in the Borough, in the minimum amounts of:

One million dollars for property damage resulting from any one accident.

Three million dollars for personal bodily injury or death resulting from any one accident.

Three million dollars for all other types of liability.

Qualifications of sureties. All insurance policies shall be with sureties qualified to do business in the State of Pennsylvania; shall be with sureties with an A-1 or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition; and in a form approved by the Borough Manager.

Policies available for review. All insurance policies shall be available for review by the Borough, and a franchisee shall keep on file with the Borough certificates of insurance.

Additional insureds; prior notice of policy cancellation. All insurance policies shall name the Borough, its Council, Council persons, officers, boards, commissions, commissioners, agents and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless 30 days' prior written notice thereof has been given to the Borough. The franchisee shall not cancel any required insurance policy without submission of proof that the franchisee has obtained alternative insurance satisfactory to the Borough which complies with this chapter.

Indemnification. The franchisee shall, at it sole cost and expense, indemnify, hold harmless and defend the Borough, its officials, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of the construction, maintenance or operation of its cable system, the conduct of the franchisee's business in the Borough or in any way arising out of the franchisee's enjoyment or exercise of the franchise granted hereunder, except that the franchisee shall not indemnify, hold harmless and defend the Borough in connection with any negligent or malicious act or omission attributable to the Borough. This provision includes but is not limited to the Borough's reasonable attorney' fees incurred in defending against any such claim, suit or proceeding and claims arising out of copyright infringements or a failure by the franchisee to secure consents from the owners, authorized distributors or franchisees of programs to be delivered by the cable system.

Indemnification for Cable Act claims. Franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the Borough and, in its capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages or otherwise subject to Section 638 of the Cable Act, 47 U.S.C. § 558, arising out of or alleged to arise out of the installation, construction, operation or maintenance of its system, including but not limited to any claim against the franchisee for invasion of the right of privacy, defamation of any person, firm or corporation or the violation or infringement of any copyright, trademark, trade name, service mark or patent or of any other right of any person, firm or corporation. This indemnity does not apply to programming carried on any channels leased pursuant to 47 U.S.C. § 532, unless the franchisee was in any respect engaged in determining the editorial content of the program or unless the franchisee adopts a policy of prescreening programming for the purported purpose of banning indecent or obscene programming. Nothing herein shall prohibit the Borough from participating in the defense of any litigation by its own counsel and obtaining indemnification for the costs associated therewith.

No limit of liability. Neither the provisions of this section nor any damages recovered by the Borough shall be construed to limit the liability of the franchisee for damages under any franchise issued hereunder.

§ A227-13 Security fund.

[Amended 9-20-1994 by Ord. No. 94-6]

Security deposit. Prior to the franchise becoming effective, the franchisee shall post with the Borough a cash security deposit to be used as a security fund to ensure the franchisee's faithful performance of and compliance with all provisions of this chapter and other applicable law and compliance with all orders, permits and directions of the Borough, and the payment by the franchisee of any claims, liens, fees or taxes due the Borough which arise by reason of the construction, operation or maintenance of the system, or for any damages or loss suffered by the Borough as a result of the franchisee's nonperformance, including the full amount of any compensation, indemnification or cost of removal of any property of the franchisee in the event of default, and a reasonable allowance for attorneys' fees and costs. The amount of the security fund shall be $20,000.

Surety bond. The Borough and the franchisee may agree that the franchisee may, in lieu of the security fund, file and maintain with the Borough a bond with an acceptable surety in the amount of $100,000 to indemnify the Borough against any losses it may suffer in the event the franchisee fails to comply with one or more of the provisions of this franchise. Said bond shall be obtained at the sole expense of the franchisee and remain in effect for the full term of the franchise, plus an additional six months thereafter. The franchisee and its surety shall be jointly and severally liable under the terms of the bond for any damages or loss suffered by the Borough as a result of the franchisee's nonperformance, including the full amount of any compensation, indemnification or cost of removal of any property of the franchisee in the event of default, and a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond. The bond shall provide for 30 days' prior written notice to the Borough of any intention on the part of the franchisee to cancel, fail to renew or otherwise materially alter its terms. Neither the filing of a surety bond with the Borough, nor the receipt of any damages recovered by the Borough thereunder, shall be construed to excuse faithful performance by the franchisee or limit the liability of the franchisee under the terms of this franchise for damages, either to the full amount of the bond or otherwise.

Security fund in addition to all other Borough rights. The rights reserved to the Borough with respect to any security fund or an indemnity bond are in addition to all other rights of the Borough, whether reserved by this chapter or authorized by other law, and no action, proceeding or exercise of a right with respect to such security fund or indemnity bond will affect any other right the Borough may have.

Procedures. In order for the Borough to assert its rights to recovery from the security fund it shall, through the Borough Manager, provide notice identifying the specific nature of the default or claim. Franchisee shall, within five days, commence, and diligently work toward, the resolution of the alleged default or claim; such resolution to be achieved within 60 days of notice. In the event of failure of franchisee to resolve the default or claim, the Borough shall issue a notice of default or claim and may thereupon claim its losses against the security fund.

§ A227-14 Performance bond.

[Amended 9-20-1994 by Ord. No. 94-6]

Establishment of performance bond. Prior to any cable system construction, upgrade or other work in the streets, a franchisee shall establish in the Borough's favor a performance bond in an amount equal to 120% of the cost of the proposed physical construction (based upon an estimate approved by the Borough Engineer) to insure the franchisee's faithful performance of the construction, upgrade or other work.

Recovery under performance bond. In the event a franchisee subject to such a performance bond fails to complete the cable system construction, upgrade or other work in the streets in a safe, timely and competent manner in accord with the material provisions of this franchise, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the Borough as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the franchisee, or the cost of completing or repairing the system construction, upgrade or other work in the streets, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The Borough may also recover against the bond any amount recoverable against the security fund or surety bond where such amount exceeds that available under the security fund or surety bond. Before seeking recovery under this Subsection B, the Borough shall provide to the franchisee reasonable notice and opportunity to cure.

Changes to amount of performance bond. Upon completion of the system construction, upgrade or other work in the streets and payment of all construction obligations of the cable system to the satisfaction of the Borough, the Borough shall eliminate the bond or reduce its amount after a time appropriate to determine whether the work performed was satisfactory, which time shall be established considering the nature of the work performed.

Qualifications of sureties. The performance bond shall be issued by a surety with an A-1 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the Borough; and shall contain the following endorsement:

"This bond may not be canceled, or allowed to lapse, until 60 days after receipt by the Borough, by certified mail, return receipt requested, or a written notice from the issuer of the bond of intent to cancel or not to renew."

Performance bond in addition to all other Borough rights. The rights reserved by the Borough with respect to any performance bond established pursuant to this chapter are in addition to all other rights and remedies the Borough may have under this chapter or at law or equity and all other Borough regulations.

§ A227-15 Enforcement remedies; violations and penalties.

[Amended 9-20-1994 by Ord. No. 94-6]

Available remedies. In addition to any other remedies available at law or equity, the Borough may apply any one or a combination of the following remedies in the event a franchisee violates this chapter or applicable state or federal law:

Revoke the franchise pursuant to the procedures specified in this chapter.

In addition to or instead of any other remedy, seek legal or equitable relief from any court of competent jurisdiction.

Impose penalties available under state and local law for violation of Borough ordinances.

Determination of appropriate remedies. In determining which remedy or remedies are appropriate, the Borough shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations and such other matters as the Borough determines are appropriate to the public interest.

Notice of violation or default. Except as otherwise provided hereunder, prior to applying one or more of the remedies provided in this section, the Borough Manager shall provide notice identifying the specific nature of the violation or default. Franchisee shall, within five days, provide a response and commence, and diligently work toward, the correction of the violation or default. In the event that the violation or default is not corrected within 60 days of notice, the Borough may proceed to apply the remedies provided in this section as may be appropriate in the circumstances. Nothing in this subsection shall be construed to limit the ability of the Borough to impose penalties in the usual manner for violation of its other ordinances and regulations.

§ A227-16 Rights to be assignable and transferable.

[Amended 9-20-1994 by Ord. No. 94-6]

The rights granted under this chapter shall be freely assignable and transferable by the company subsequent to the commencement of service and during the term hereof, provided that no assignment or transfer of the rights granted hereunder shall become effective until the assignee or transferee has filed with thee Borough Secretary an instrument accepting terms of this chapter and agreeing to perform all of the conditions hereof.

§ A227-17 Revocation or termination.

Basis for revocation. A franchise may be revoked by the Borough for a franchisee's failure to construct, operate or maintain the cable system as required by this chapter, for defrauding or attempting to defraud the Borough or subscribers, if the franchisee is declared bankrupt, or for any other material violation of this chapter. To invoke the provisions of this section, the Borough shall give the franchisee written notice via certified mail of the default in its performance. If within 30 calendar days following such written notice from the Borough to the franchisee, the franchisee has not taken corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the Borough, the Borough may give written notice via certified mail to the franchisee of its intent to revoke the franchise, stating its reasons, provided that no opportunity to cure shall be provided where the franchisee has defrauded or attempted to defraud the Borough or its subscribers, or in the case of a fraud or attempted fraud, the franchise may be revoked after the hearing required under Subsection B; revocation for bankruptcy shall be governed by Subsection C.

Procedure. Prior to revoking a franchise, the Borough shall hold a public hearing, upon 30 calendar days' notice, at which time the franchisee and the public shall be given an opportunity to be heard. Following the public hearing, the Borough may determine whether to revoke the franchise based on the information presented at the hearing and other information of record. If the Borough determines to revoke a franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to the franchisee.

Revocation after bankruptcy. Any franchise may, at the option of the Borough following a public hearing before the Borough, be revoked 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors or other action or proceeding, unless within that one-hundred-twenty-day period:

Such assignment, receivership or trusteeship has been vacated; or

Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and such other conditions as may be established or as are required pursuant to § A227-17.

Revocation after foreclosure. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the Borough may revoke the franchise, following a public hearing before the Borough, by serving notice on the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate 30 calendar days after serving such notice, unless:

The Borough has approved the transfer of the franchise to the successful bidder; and

The successful bidder has covenanted and agreed with the Borough to assume and be bound by the terms and conditions of this chapter and such other conditions as may be established or as are required pursuant to § A227-17.

Rights on revocation. If the Borough revokes a franchise or if for any other reason a franchisee abandons, terminates or fails to operate or maintain service to its subscribers, the following procedures and rights are effective:

The Borough may require the former franchisee to remove its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the Borough may have the removal done at the former franchisee's and/or surety's expense.

In the event of revocation, the Borough, by resolution, may acquire ownership of the cable system at an equitable price.

If a cable system is abandoned by a franchisee or the franchisee fails to operate or maintain service to its subscribers or otherwise terminates the franchise, the ownership of all portions of the cable system in public rights-of-way shall revert to the Borough, and the Borough may sell, assign or transfer all or part of the assets of the system.

§ A227-18 Rights of individuals.

Discriminatory practices prohibited.

The franchisee shall not deny service, deny access or otherwise discriminate against subscribers, programmers or residents of the Borough on the basis of race, color, religion, national origin, sex or age.