[Adopted 4-4-1995 by Ord. No. 230 (Ch.
13 Part 3 of the 1995 Code)]
The Borough of Tullytown, Bucks County, Pennsylvania,
does hereby find and determine, and declare as follows:
A. That after due notice to all interested parties, the
public in general and in accordance with the Cable TV Act of 1984,
the Cable Television Consumers Protection and Competition Act of 1992,
and amendments, which afforded all interested parties an opportunity
to be heard, the Council, in public meetings, affirmed a renewal of
the cable television franchise to Oxford Valley Cablevision, Inc.,
subject to the terms and conditions described herein.
B. That representatives of Oxford Valley Cablevision,
Inc., have examined the provisions of this chapter and have represented
to the Borough that they are thoroughly familiar with and agree to
the provisions thereof.
C. That the renewal of this franchise is in the public
interest.
This chapter shall be known and may be cited
as the "Borough of Tullytown Cable Television Franchise Ordinance,"
"CATV Franchise," "Cable Franchise" or "Franchise."
A. When not inconsistent with the context, words used
in the present tense include the future, words in the plural number
include the singular number, and words in the singular number shall
include the plural number. The word "shall" is always mandatory and
not merely directory.
B. For the purpose of this chapter, the following terms,
phrases, words and their derivations shall have the meanings given
herein:
BASIC SERVICE
The lowest cost tier of service provided to subscribers.
Other service tiers may use the basic designation plus an identifier
such as Basic II or Basic Level 2 or other appropriate identifier.
CABLE TELEVISION, CATV, SYSTEM
A system of antennas, cables, wires, lines, fiber optic cables,
towers, waveguides or other conductors, converters, equipment or facilities
designed and constructed for the purpose of producing, receiving,
modifying, amplifying and distributing analog or digital, audio, video,
data, computer information and other forms of electronic electrical
or optical signals, singularly or in bulk, to individual subscribers
or businesses within the Borough.
COMPANY, GRANTEE, FRANCHISEE, CABLE OPERATOR
Oxford Valley Cablevision, Inc., an entity owned by Sammons
Communications, Inc., the grantee of rights under this chapter for
a renewal of the cable TV franchise in the Borough of Tullytown.
GROSS REVENUES
Revenues derived from all sources, including charges paid
by subscribers for all cable services provided by the company in Tullytown,
including all programming levels and tiers, pay-per-view or pay-to-listen,
channels and services, advertising revenue from access channels, commercial
insertions on cable channels, rebates from home shopping services,
and any other type of income received as a result of providing cable
TV services to the Borough or arising from use of the wire/fiber optic
system.
PAY AUDIO-VIDEO
Any type of audio, or audio/video service for which a fee
is charged.
PAY-PER-VIEW
Any channel for which a fee is charged for a single or multiple
viewing of a program.
PERSON
Any person, firm, partnership, association, corporation,
company or organization of any kind.
TIER
Any level of service having one or more channels offered
as a program service or group of services.
A public hearing concerning the franchise herein
granted to the company was held on March 7, 1995, in the Borough public
meeting room. Public notice of said hearing was given in the newspaper
of record, on February 24, 1995, which notice invited interested parties
to participate in the hearing and comment upon legal, character, financial,
business, technical and other qualifications of the company to continue
to operate a cable television system within the Borough. The hearing
having been held on the date and place stated hereinabove, and the
hearing having been fully open to the public, and the Borough having
received at the hearing all comments regarding the qualifications
of the company to receive this franchise, the Borough finds that the
company possesses the necessary legal, technical, character, financial,
business and other qualifications; and therefore the Borough grants
to the company a nonexclusive franchise, right and privilege to continue
to operate a cable TV system, modify and maintain in, upon, along,
above and over and under the highways, streets, alleys, sidewalks,
public ways and public places now laid out or dedicated and all extensions
thereof and additions thereto in the Borough, all such utility poles,
wires, cables, underground conduits, manholes and other television
conductors and fixtures as may be necessary for the maintenance and
operation in the Borough of a cable television system for the purpose
of distributing television and radio signals and other electronic
impulses in order to furnish television and radio programs and various
communications and other electronic services to the public and businesses
within the Borough. The right so granted includes only the right to
use and occupy the Borough's public streets, alleys, public places
and all manner of utility easements for the purposes herein set forth.
It is the intention of the Borough that all public utility easements,
public or private, in the Borough be constructed to permit the uses
provided for herein. Any access or use of private property requires
the written consent of the property owner.
A. The company shall, beginning January 1, 1995, and
during each year of operation under this franchise, pay to the Borough
5% of the annual gross revenues received by the company for services
provided to subscribers within the Borough. Quarterly payment shall
be made within 30 days after the end of March, June, September and
December and shall be accompanied by suitable accounting records showing
the basis for the amount paid. In the event that federal law permits
any other basis for computing the franchise fee, such basis, or any
part thereof, may be negotiated and make part of this chapter.
B. The company shall make a lump sum payment of franchise
fee to the Borough within 45 days of the date of this agreement. The
fee shall be in the amount of 3% of the gross revenue (as gross revenue
was defined under the 1977 Agreement of the company) from August 1,
1992, through December 31, 1994, and is in the amount of $6,400. The
company shall receive credit for any franchise fee previously paid
covering the time period.
Whenever a franchise fee is made, the company
shall furnish the Borough with a report showing details of the company's
gross revenues from all sources during the preceding reporting period.
The report shall provide monthly records of gross subscriber and advertising
revenues received by the company; the number of subscribers of each
service level or tier for each service; installations; multiple set
income, remote control rental, basic and pay service, including pay-per-view,
home shopping, audio and audio/video services; names and amount of
revenue from each source; and a monthly list of the number of homes
passed. The company shall keep full, true, accurate and current books
of account reflecting all revenues and expenditures. These records
shall be available for inspection by the Borough's representative
at all reasonable times. The Borough or its auditor shall have the
right to examine and audit the books and records of the company upon
15 days' written notice of audit and during normal business hours.
The acceptance of any payment hereunder by the Borough shall not be
construed as an acknowledgment that the amount paid is the correct
amount due, nor shall acceptance of payment be construed as a release
of any claim which the Borough may have for additional sums due and
payable. All payments shall be subject to audit by the Borough. In
the event such audit results in an assessment by, and an additional
payment to, the Borough, the assessment shall be subject to interest
at the rate of 6% per year from the date on which payment should have
been paid, and shall be due and payable immediately upon assessment
unless appealed. If the audit shows that additional sums greater than
5% of the yearly fee are due the Borough, then the company shall reimburse
the Borough for the reasonable cost of the audit.
The current monthly rate for lifeline service
is in compliance with applicable statutes, rules and regulations.
The rate may be adjusted from time to time subject to applicable statutes,
rules and regulations. The company will provide the Borough with a
cost of its rate schedule and explanations thereof whenever any subscriber
rate or cost is proposed to be changed.
All rates for subscriber services must be in
compliance with the provisions of this chapter, the Cable Television
Act of 1984, as amended, and the Cable Television Consumer Protection
and Competition Act of 1992, as amended. Any rate, service or expected
channel change requires a minimum of 30 days' notice to the Borough
before the change is made and customers notified or as required by
the Cable Act of 1992, and other applicable statutes, rules and regulations.
During the term of this franchise, and any renewal
thereof, the company shall maintain a local (within five miles) business
office for the purpose of receiving and resolving any subscriber complaints
regarding the cost, quality, lack of, or interruption of service,
equipment malfunction and other similar business matters. The company
shall provide a toll-free number for use by subscribers when calling
the company's offices. In addition, the Borough Council or its representative
shall be provided with the name, address and telephone number of a
responsible person who will act as the company's agent to receive
and to initiate response to complaints regarding quality of service,
service interruptions, malfunctioning equipment or physical damage
to the cable plant.
The cable TV system shall be installed and maintained
to provide the highest reasonably possible commercial quality pictures
on subscribers' receivers throughout the system.
A. Customer service. The company shall have qualified
customer service representatives (CSR) available to respond to customer
telephone inquiries or complaints during normal hours on weekdays.
At any other time, as a minimum, the company shall maintain a recording
advising persons of the normal business hours and of a telephone number
to call for emergency repair service.
B. Under normal conditions, the company customer service
representatives shall make every attempt to answer telephone calls
within 30 seconds or 10 rings. Automated answering equipment should
be used to advise callers that lines are busy and the approximate
length of the waiting period.
C. The company shall have maintained a sufficient number
of phone lines, automated answering devices and customer service representatives
to keep "line busy" signals to a minimum during business hours.
D. Service complaints from subscribers shall be investigated
and acted upon within a maximum of 24 hours, and the company agrees
to meet all the NCTA's Voluntary Standards of Customer Service (Appendix
A). The company shall keep a customer complaint and service log which
will indicate the nature of each service complaint and the time and
date thereof, the remedial action taken and the time and date thereof.
This log shall be made available for periodic inspection by the Borough
and a quarterly summary thereof provided to the Borough.
E. The company shall furnish to the Borough information
or copies concerning the written or printed procedures given to subscribers
for making inquiries and/or complaints.
F. The company shall respond to major system outages
24 hours a day and will respond to individual outages by at least
the following day. Upon failure to remedy a loss of service attributable
to the cable system within 24 hours, after a complaint, the company
shall credit 1/30 of the regularly monthly charge to the subscriber
for each 24 hours, or fraction thereof, after the initial 24 hours
and until service is restored. "Loss of service" shall mean the failure
to provide a reasonably clear picture in black and white (monochrome)
or in color, free of distortion and interference and accompanied with
proper sound.
G. Whenever it is necessary to interrupt service for
making repairs, adjustments, tests or to change equipment, the company
shall do so at such time as will cause the least amount of inconvenience
to subscribers. Unless such interruption is unforeseen and immediately
necessary, the company shall give reasonable notice to affected subscribers.
If more than 50 subscribers are affected, the company shall also notify
the Borough and provide a time limit as to when the interruption will
terminate.
The company, by its acceptance of this franchise,
agrees to pay any and all damages and penalties which the Borough
may legally be required to pay as a result of the company's negligence
in the installation, operation or maintenance of the cable television
system authorized herein. The Borough shall notify the company's representative
within 15 days after the presentation of any claim or demand to the
Borough. The company further agrees as follows:
A. The company shall carry workers' compensation insurance
with statutory limits, and employer's liability insurance with limits
of not less than $1,000,000 per person and $5,000,000 per accident
which shall cover all operations to be performed by the company as
a result of this chapter.
B. The company shall carry comprehensive general and
comprehensive automobile liability insurance with bodily limits of
not less than $1,000,000 per person, and $5,000,000 per accident and
property damage limits of not less than $1,000,000.
C. The company agrees to furnish the Borough with certificates
of insurance of said policies, which shall provide that insurance
shall not be canceled unless 10 days' prior written notice shall first
be given to the Borough. The Borough shall be named as an additional
insured on all of the aforesaid policies.
A. With this grant of a franchise to operate, maintain
and reconstruct a cable television system in the Borough, the company
is permitted to enter into contracts with divisions or authorities
of the Borough, public utility company, other municipalities and any
other owner or lessee of poles located within or outside the Borough
to the extent such contract or contracts may be expedient and of advantage
to the company for the use of poles and rights-of-way necessary for
proper maintenance of the system.
B. The company's system, poles, wires, power supplies
and other appurtenances shall be located, erected and maintained so
that none of its facilities shall endanger or interfere with the lives
of persons or interfere with any improvements the Borough may deem
proper to make or unnecessarily hinder or obstruct the free use of
streets, alleys, roads, lanes, avenues, bridges, highways, easements
or public property. The company shall meet all necessary Borough standards
and permit requirements. Where utility facilities are placed underground,
the company shall place its cables, wires underground except for amplifiers,
power supplies and other such devices which may be placed in underground
waterproof vaults or in aboveground pedestals. The company shall be
a member of the Pennsylvania "One Call" system for underground facilities
location.
C. In case of any disturbance of pavement, sidewalk,
driveway or other surface, the company shall, at its own cost and
expense, and in a manner approved by the Borough, replace and restore
all paving, sidewalk, driveway or surface of any street or alley disturbed
in as good condition as existed before the work was commenced.
D. In the event that at any time during the period of
this franchise, the Borough, state or county shall lawfully elect
to alter or change the grade of any street, alley or public way, the
company, upon reasonable notice by the Borough, state or county, shall
remove, re-lay or relocate its wires, cables, underground conduits,
manholes and other fixtures as required, and at its own expense.
E. The company shall not place poles or other fixtures
where they will interfere with any properly located gas, electric
or telephone fixture, water hydrant or main, and all such poles or
other fixtures in any street shall be placed at the outer edge of
the sidewalk and inside the curbline; and those placed in alleys or
backyards shall be placed close to the line of the lot abutting on
said alley, street, or yard, etc., and then in such a manner as not
to interfere with the usual traffic on said streets, alleys, yards
and public ways.
F. The company shall, on 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, raising or lowering of wires shall be paid
by the person or company requesting the same, and the company shall
have the authority to require such payment in advance. The company
shall be given not less than five business days' advance notice to
arrange for such temporary wire changes.
G. The company shall have the authority to trim or have
trees trimmed within the Borough, upon and overhanging 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 company. All such trimming shall be done under the supervision
and direction of the Borough and at the expense of the company.
H. The company shall provide, upon request and without
charge, a cable service drop, including the EG (educational, government)
access channels, to any municipal building owned and operated by the
Borough and to any public or private school. This shall mean a single
standard installation outlet with basic cable service. Additional
wiring, multiple outlets and services shall be charged to the institution
at the company's then prevailing rates.
The company shall provide a reasonable and nondiscriminatory
policy governing extensions of cable service within the Borough, which
policy is subject to public review in the public proceeding leading
to and subsequent to the award of this franchise. The company shall
extend service to new subscribers, at the normal installation charge
and monthly rate for customers of that classification, under the following
terms and conditions:
A. Where the new subscriber, or nearest subscriber of
a group of new subscribers, is located within 500 feet of existing
trunk or distribution cable.
B. All residential areas of the Borough shall be provided
availability of cable service.
The company agrees and shall comply with the
rules and regulations of the FCC in connection with the provision
of EG (E = educational; G = government) access channels as follows:
A. Educational access channel. The company shall maintain
at least one specially designated local educational access channel
for use by the local schools and educational authorities. This channel
may be shared with another community to insure proper utilization.
If utilization of this channel is such that an additional channel
is needed for exclusive use within the Borough, the company shall
provide it.
B. Local government access channel. The company shall
provide a specially designated channel for local government use.
C. Community information channel. The Borough shall have
the right to the use of a community information channel.
D. Equipment grants. The company shall make a cash grant
toward the purchase of equipment needed to operate the government
access and educational access channels. Within 60 days from the adoption
of this chapter, the company shall deliver to the Borough a check
in the amount of $15,000. These funds shall be used by the Borough
for the purchase of equipment. The company shall also provide technical
expertise and assistance as available to the Borough with regard to
the design, purchase, installation and maintenance of said equipment.
All facilities and equipment of the company
shall be constructed and maintained in accordance with the requirements
and specifications of the National Electrical Safety Code and such
applicable ordinances and regulations of the appropriate Borough,
state, county and federal agencies.
The company shall have the authority to promulgate
such rules, regulations, terms and conditions governing the conduct
of its business as shall be reasonably necessary to enable the company
to exercise its rights and perform its obligations under this franchise,
and to assure an uninterrupted service to each and all of its customers.
However, such rules, regulations, terms and conditions shall not be
in conflict with the provisions hereof or of federal or state laws
or ordinances of the Borough.
A. The franchise herein granted is personal to the grantee.
It cannot be transferred, leased, assigned or disposed of as a whole
or in part either by forced sale, merger, consolidation or otherwise,
without prior consent of the Borough expressed by ordinance which
shall not be unreasonably withheld.
B. Any foreclosure or judicial sale of all or any part
of the system shall be considered default. Initiation of such proceedings
shall be treated as a notification of a change of control of the company.
C. The Borough shall have the right to cancel this franchise
120 days after the election or appointment of a receiver or trustee
to take over and conduct the business of the company, whether in receivership,
reorganization, bankruptcy, or other action or proceedings, unless
such receivership or trusteeship shall have vacated prior to the expiration
of the 120 days, or unless:
(1)
Within 120 days after the election or appointment
such receiver or trustee shall have fully complied with all of the
provisions of this chapter and remedied all failures or defaults thereunder.
(2)
Within said 120 days such receiver or trustee
shall have executed an agreement, duly approved by the court having
jurisdiction in the premises, where such receiver or trustee assumes
and agrees to be bound by each and every provision of this chapter.
There is hereby established an Advisory Board
on Cable Television to be appointed by the Borough Council. The Board
shall be composed of five voting members who shall reflect the diverse
community interests of the Borough and who shall serve at the pleasure
of the Borough Council. Any vacancy shall be filled by the Borough
by appointment for the remainder of the term. No employee or person
with ownership interest in a cable television franchise grantee pursuant
to this chapter shall be eligible for voting membership on this Board.
The Chairperson of the Board shall be elected by the voting members
of the Board for a term of one year. Any action of the Board shall
require concurrence of at least three voting members of the Board.
The manager or their designated representative of the grantee shall
be a nonvoting member of the Cable Advisory Board. The Board shall
have the following responsibilities:
A. Advise Borough Council on other applications for franchises
and on franchise renewals.
B. Advise Borough Council on matters which might be grounds
for revocation of the franchise or imposition of a penalty on the
company in accordance with the terms of this chapter. In such instances,
the Advisory Board shall conduct a hearing for finding of fact and
present this to Council, after which Council will give the company
30 days' written notice of said notice of said hearing and charges.
C. Hear complaints by consumers of cable television services,
attempt to resolve disputes regarding the provision of service, and,
where it deems necessary, recommend to Council the imposition of sanctions
or fines to enforce the provisions of this chapter.
D. Resolve disagreements and disputes among the franchises
or other types of services operating or desiring to operate within
the Borough and make recommendations to the Borough Council.
E. Cooperate with other nearby cable TV systems with
a goal of interconnection of systems with respect to EG access channels.
F. Provide for an audit of company records as required
by this chapter.
G. Make an annual report to the Borough, including an
accounting of franchise fees received and distributed, the degree
of utilization of access channels and, throughout the year, review
any plans submitted by the company for development of new services,
changes or deletions of services.
H. Conduct an evaluation of the system at least every
three years, with respect to the company's services, rates, business
practices, and technical performance. Make appropriate recommendations
to the Council, which can include use of a consultant and revisions
to this chapter.
I. Resolve disagreements among the franchises or between
the company and subscribers or public or private users of the system
and make recommendations to Council.
J. Review and recommend action on insurance limits.
The company shall be responsible for the payment
of costs and professional fees incurred by the Borough where the Borough
is attempting to or has attempted to enforce the provisions of this
chapter or other legal rights against grantee and is successful. The
Borough's rights of enforcement, penalties or remedies shall be cumulative,
and the imposition of any penalty or remedy shall not prevent the
Borough from invoking any other penalty or remedy.
The company shall not, as to rates, charges,
services, facilities, rules, regulations nor in any respect, make
or grant any preference or advantage to any person, nor subject any
person to any prejudice or disadvantage; provided that nothing in
this franchise shall be deemed to prohibit the establishment of a
graduated scale of charges and classified rate schedules to which
any customer coming within such classification would be entitled.
Subscribers' names and addresses shall not be given or sold to other
sources.
A. No person, whether or not a subscriber to the cable
system, shall willfully, maliciously or otherwise damage or cause
to be damaged any wire, cable circuit, apparatus, appurtenance or
equipment of the company operating a cable television system within
the Borough or commit any act with intent to cause such damage, or
to tap, tamper with or otherwise connect any wire or device to a wire,
cable circuit, apparatus, appurtenance or impulse from the cable system
without authorization from or compensation to such company or to obtain
cable television or other communications service with intent to cheat
or defraud said company of any lawful charge to which it is entitled.
B. Whoever shall violate any provision of this chapter
shall be guilty of a cable TV theft of service and shall be subject
to the greater penalty prescribed by either the Commonwealth of Pennsylvania
theft of service statutes, or the Cable Act of 1984 and of 1992, as
amended, and other applicable statutes, rules and regulations. The
penalties provided in this section shall be enforced by appropriate
proceedings instituted by the Borough or the company. The company
and the Borough shall cooperate in the detection and prosecution of
cable services theft.
A. No landlord shall demand or accept payment from company
for permitting the company to provide cable television service on
or within said landlord's property or premises; provided, however,
such landlord may be entitled to reasonable reimbursement for any
expenses incurred by him to repair damage to the property or premises
resulting from the installation of cable television service if the
company fails to repair such damage.
B. No landlord shall interfere with the installation
of cable facilities upon his property or premises, nor shall such
landlord discriminate in rental charges, or otherwise, between tenants
who receive cable service and those who do not. No landlord shall
demand or accept payment from any tenant, in any form, for permitting
cable television service on or within their property or premises.
C. The company shall give notice by certified, return
receipt requested, mail to the landlord prior to installation of cable
television service on or within the landlord's property or premises
so that the landlord shall have opportunity for input as to the location
of the installation on the property. The notice shall advise the landlord
that, unless the landlord contacts the company and advises to the
contrary, the installation will proceed without further notice. Company's
obligation to give notice to the landlord shall be fully satisfied,
providing company has made a reasonable effort to ascertain if the
premises are subject to a lease and the company gives notice as provided.
This franchise specifically incorporates the provisions of the Pennsylvania
Access to Premises Law.
The company shall maintain a public file containing
the following for inspection by the general public or by the Borough
in accordance with the applicable FCC rules and as specified herein:
A. Head end proof of performance.
B. System proof of performance; frequencies and measurements.
C. Cumulative leakage index measurements, information
and FCC filing forms.
D. Current listing of programming on all channels carried
over the system.
F. System maps showing amplifiers, fiber optic facilities,
powering locations, standby battery locations and head end details,
including block diagrams.
G. Records of customer complaints; service calls and
outages.
H. Company technical standards.
I. Monthly records of the number and types of service
connects and disconnects.
J. Annual employment report and EEO policy and files.
K. Cable casting schedule of users and charges.
L. FCC Form 325, Schedules 1 through 4, or replacement
forms.
M. Certificates of insurance; property and liability;
workers' compensation, automobile.
N. Fiber optic, design, initial measurements and monitored
performance data.
O. Trunk, distribution and drop line performance measurements
and data.
P. Records of sweep and distortion measurements and other
in-service test data.
The company shall notify the Borough at least
30 days in advance with the reasons and cost effects of any service
changes before customers are advised and program changes are made.
Upon nearing 95% system utilization, the company will notify and establish
meetings with Borough officials to discuss system expansion and possible
franchise extension in an effort to resolve any system capacity limitation.
If any section, subsection, sentence, clause,
phrase or portion of this chapter is for any reason held invalid or
unconstitutional by any court of competent jurisdiction or the FCC,
or by changes in the applicable laws, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portions thereof.
The franchise granted herein shall be accepted
by the company with a written acknowledgment filed with the Borough
not later than 60 days after the award. The Borough shall certify
the adoption hereof and cause the same to be published in the manner
prescribed by law and shall forward a signed copy of this chapter
to the company. The company will pay the cost of the preparation and
advertising of this chapter.