Township of Nether Providence, PA Chapter A309 Cable Television

[HISTORY: Adopted by the Board of Commissioners of the Township of Nether Providence as indicated in article histories. Amendments noted where applicable.]

Article I Cable Communications Regulatory Code

[Adopted 4-13-2000 by Ord. No. 642[1]]

[1] Editor's Note: This ordinance also superseded former Ch. A309, Cable Television, adopted 1-11-1979 by Ord. No. 490, as amended 4-14-1988 by Ord. No. 555.

§ A309-1 General provisions.

A. Title. This ordinance shall be known and may be cited as the "Nether Providence Cable Communications Regulatory Code."

B. Purpose. The Township of Nether Providence finds that the development of cable systems has the potential of having a great benefit to and positive impact on the people of Nether Providence. Because of the complex and rapidly changing technologies associated with cable television, the Township also finds that public convenience, safety and general welfare can best be served by vesting in the Township, or such persons as the Township designates, the power to regulate certain aspects of the construction and operation of cable systems. Further, the Township recognizes that cable systems have the capacity to provide not only entertainment and information services to Township residents but also a variety of broadband, interactive services to Township agencies and other institutions. For these purposes, the following goals, among others, underlie the provisions set forth in this ordinance:

(1) Cable services should be available to as many Township residents as possible.

(2) Each cable system should be capable of accommodating both the present and reasonably foreseeable future cable-related needs of the community.

(3) Each cable system should be constructed and maintained during the franchise term so that components may be integrated to the maximum extent possible into existing system facilities.

(4) Each cable system should be responsive to the needs and interests of the local community.

C. The Township intends that all provisions set forth in this ordinance be construed to serve the public interest and the foregoing public purposes, and that any franchise issued pursuant to this ordinance be construed to include the foregoing findings and public purposes as integral parts thereof.

§ A309-2 Definitions and word usage.

For the purposes of this ordinance, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number, and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in the Cable Act and, if not defined therein, their common and ordinary meaning.

ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for public, educational and/or governmental use.

AFFILIATE

Any person who owns or controls, is owned or controlled by or is under common ownership or control with the franchisee and is involved with the operation of the franchisee's cable system.

BOARD

The Township Commissioners of Nether Providence Township.

CABLE ACT

The Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, as may be further amended from time to time.

CABLE SERVICE or SERVICE

The one-way transmission to subscribers of video programming or other programming services; and subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

CABLE SYSTEM or SYSTEM

A facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the Township, but such term does not include a facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control or management, unless such facility or facilities use any public right-of-way, including streets or easements; a facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control or management, unless such facility uses any right-of-way; a facility of a common carrier which is subject, in whole or in part, to the provisions of Subchapter II of the Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming, whether on a common-carrier or noncommon-carrier basis, directly to subscribers; or any facilities of any electric utility used solely for operating its electric utility systems.

EDUCATIONAL ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for noncommercial educational use.

FCC

The Federal Communications Commission, its designee or any successor governmental entity thereto.

FRANCHISE

The nonexclusive rights granted in accordance with this ordinance to construct, operate and maintain a cable system along public rights-of-way within all or a specified area of the Township. Any such authorization, in whatever form granted, may specifically include a license or permit to use the system for the provision of noncable services; it shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the Township as required by the ordinances and laws of the Township, or for excavating or performing other work in or along public rights-of-way.

FRANCHISE AGREEMENT

A contract entered into in accordance with the provisions of this ordinance between the Township and a franchisee that sets forth terms and conditions under which the franchise will be exercised.

FRANCHISE AREA

The area of the Township that the franchisee is authorized to serve by its franchise agreement.

FRANCHISEE

The person(s) which has been granted a franchise by the Township.

GOVERNMENTAL ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for noncommercial government access use.

GROSS ANNUAL REVENUES

Any and all cash, credits, property or other consideration of any kind or nature received annually, directly or indirectly, by the franchisee, its affiliates or any person in which the franchisee has a financial interest, or by any other entity that is a cable operator of the system arising from, attributable to or in any way derived from the cable system, including the studios and other facilities associated therewith. Gross annual revenues include, but are not limited to, monthly fees charged subscribers for any basic, optional, premium, per-channel or per-program service; installation, disconnection, reconnection and change in service fees; leased channel fees; late fees and administrative fees; fees, payments or other consideration received from programmers for carriage of programming on the system; revenues from converter rentals or sales; studio rental, production equipment and personnel fees; advertising revenues; barter; revenues from program guides; revenues from home shopping and bank-at-home channels; and revenues from the sale or carriage of noncable services, including information services; provided, however, that the definition as stated herein is not intended to include any revenues which may not be subjected to the imposition of franchise fees by a franchisor/municipality under the provisions of the federal Cable Telecommunications Act of 1996, as now or hereafter amended, and the regulations promulgated thereunder from time to time. Gross annual revenues shall be the basis for computing the franchise fee under this ordinance. Gross annual revenues shall not include any revenue derived from the sale or rental of real property interests of the franchisee.

NONCOMMERCIAL

Refers to programming, the primary purpose of which is not to propose a sale or barter of a commercial product or service. The term expressly does not refer to programming the cost of which is underwritten by one or more commercial or noncommercial programmers, even where the underwriting is acknowledged as part of the program.

PERSON

An individual, partnership, association, joint-stock company, joint venture, organization, domestic or foreign corporation or any lawful successor thereto or transferee thereof.

PREMIUM SERVICE

A cable service that is sold on a per-channel or per-program basis.

PUBLIC ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for noncommercial use by the general public and which is available for such use on a nondiscriminatory basis.

PUBLIC RIGHT-OF-WAY

The surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, easement or similar areas in which the Township now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any franchise agreement, to a "public right-of-way" shall be deemed to be a representation or guaranty by the Township that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the Township and as the Township may have the undisputed right and power to give.

SALE

Any sale, lease, exchange or barter transaction or any other transaction involving the transfer or other disposition of property or the provision of a service for compensation of any nature.

SERVICE TIER

A category of cable service provided by the franchisee and for which a separate charge is made by the franchisee.

STREET

The surface of and the space above or below any public street, public roadway, public highway, public freeway, public lane, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive or any public easement or public right-of-way now or hereafter held by the Township which shall entitle the franchisee to the use thereof for the purposes of installing over poles such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and appurtenant to the operation of the system.

SUBSCRIBER

Any person who legally receives cable service.

SYSTEM FACILITIES or FACILITIES

Cable system equipment used by the franchisee to provide service in the franchise area.

TOWNSHIP

The Township of Nether Providence, Delaware County, Pennsylvania, as represented by the Township Commissioners.

TRANSFER

Any transaction that results in a change of control over the franchisee or the cable system; or in which the rights and/or obligations held by the franchisee under a franchise agreement are transferred or assigned to another person or group of persons. Unless otherwise specified in a franchise agreement, control for these purposes means working control, in whatever manner exercised. Unless otherwise specified in a franchise agreement, the addition, deletion or other change of any general partner of the franchisee, any person who owns or controls the franchisee or a cable operator of the cable system is such a change of control.

USER

A person utilizing a channel or equipment and facilities for purposes of producing and/or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

§ A309-3 Grant of franchise.

A. Grant of franchise. The Township may grant one or more cable television franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this ordinance. This ordinance may be amended from time to time, and in no event shall this ordinance be considered a contract between the Township and a franchisee such that the Township would be prohibited from amending any provision hereof. The term of the franchise agreement shall be 10 years with an automatic renewal of five additional years at the option of the Township and the franchisee.

B. Franchise required. No person may construct or operate a cable system over, on or under a public right-of-way in the Township without a franchise granted by the Township unless otherwise authorized by law, and no person may be granted a franchise without having entered into a franchise agreement with the Township pursuant to this ordinance.

C. Franchise characteristics.

(1) A franchise authorizes use of streets within the Township for installing cables, wires, lines, optical fiber, underground conduit and other facilities to operate a cable system, but does not expressly or implicitly authorize the franchisee to provide service to or install cables, wires, lines, underground conduit or any other equipment or facilities on private property without owner consent [except for use of compatible easements pursuant to Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2)] or to use publicly or privately owned conduits without a separate agreement with the owners.

(2) The term of a franchise shall not exceed 15 years and may not exceed five years unless the franchise agreement contains clear and enforceable provisions for regulating upgrades, improving customer service requirements, reevaluating access requirements and making such other requirements as may be necessary in light of advancements in technology.

(3) A franchise is nonexclusive and revocable and will not explicitly or implicitly preclude the issuance of other franchises to operate cable systems within the Township or affect the Township's right to authorize use of Township streets by other persons to operate cable systems or for other purposes as it determines appropriate.

(4) Once a franchise agreement has been accepted and executed by the Township and a franchisee, such franchise agreement shall constitute a contract between the franchisee and the Township, and the terms, conditions and provisions of such franchise agreement, subject to this ordinance and all other duly enacted and applicable laws, shall define the rights and obligations of the franchisee and the Township relating to the franchise.

(5) All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the streets, and the Township reserves the right to reasonably designate where a franchisee's facilities are to be placed within the streets depending upon engineering constraints.

(6) A franchise shall be a privilege that is in the public trust and personal to the original franchisee. Except as otherwise agreed to in a franchise agreement, no transfer of a franchise shall occur other than to the principal parents of the franchisee, a parent corporation, a subsidiary or affiliate corporation of a parent company or subsidiary or affiliate corporation of the franchisee or any firm owned by the franchisee without the prior consent of the Township pursuant to this ordinance and the franchise agreement, which consent shall not be unreasonably withheld.

D. Franchisee subject to other laws; police power.

(1) A franchisee shall at all times be subject to and shall comply with all applicable federal, state and Township laws. A franchisee shall at all times be subject to all lawful exercise of the police power of the Township, including all rights the Township may have under 47 U.S.C. § 552.

(2) No course of dealing between a franchisee and the Township, nor any delay on the part of the Township or franchisee in exercising any rights hereunder, shall operate as a waiver of any such rights of the Township or franchisee or acquiescence in the actions of the Township or franchisee in contravention of rights except to the extent expressly waived by the Township or franchisee or expressly provided for in a franchise agreement.

(3) The Township shall have such authority to regulate cable systems, franchisees and franchises as may now or hereafter be lawfully permissible; and all rights granted to the Township by the Cable Act and the FCC are hereby reserved, whether expressly enumerated or not.

E. Interpretation of franchise terms.

(1) The express terms of this ordinance will prevail over conflicting or inconsistent provisions in a franchise agreement.

(2) The provisions of a franchise agreement will be liberally construed in favor of the Township.

(3) Except as to matters that are governed by federal law or regulation, a franchise agreement will be governed by and construed in accordance with the laws of the State of Pennsylvania.

F. Right of condemnation reserved. Nothing in this ordinance or the franchise shall limit any right the Township may have to acquire by eminent domain or otherwise any property of franchisee.

§ A309-4 Applications for grant, renewal or modification of franchises.

A. Written application.

(1) A written application shall be filed with the Township for grant of an initial franchise; renewal of a franchise under either the formal or informal procedures in accordance with Section 626 of the Cable Act, 47 U.S.C. § 546; or modification of a franchise agreement pursuant to this ordinance or a franchise agreement. The Township may require the applicant to demonstrate in its application compliance with all requirements of this ordinance and all applicable laws.

(2) To be acceptable for filing, a signed original of the application shall be submitted, together with 10 copies. The application must be accompanied by the required application filing fee as set forth in § A309-4E, conform to any applicable request for proposals and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(3) All applications accepted for filing shall be made available by the Township for public inspection.

B. Application for grant of an initial franchise.

(1) A person may apply for an initial franchise by submitting a proposal and requesting an evaluation of that proposal pursuant to Subsection B(4).

(2) The proposal for the grant of an initial franchise shall contain, at minimum, the following information:

(a) Name and address of the applicant and identification of the ownership and control of the applicant, including the names and addresses of the 10 largest holders of an ownership interest in the applicant and affiliates of the applicant and all persons with 5% or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person.

(b) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel.

(c) Applicant's legal qualifications.

[1] A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:

[a] The applicant must not have submitted an application for an initial or renewal franchise to the Township which was denied on the ground that the application failed to serve the public interest or as to which any challenges to such franchising decision were finally resolved adversely to the applicant within three years preceding the submission of the application.

[b] The applicant must not have had any cable television franchise validly revoked by any franchising authority within three years preceding the submission of the application.

[c] The applicant must have the necessary authority under Pennsylvania law to operate a cable system.

[d] A franchise will not be issued to an applicant that may not hold the franchise as a matter of federal law. An applicant must have or show that it is qualified to obtain the necessary federal licenses or waivers required to operate the system proposed.

[e] An applicant shall not be issued a franchise if, at any time during the 10 years preceding the submission of the application, the applicant was convicted of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the Township and the subscribers of the cable system or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering or other similar conduct.

[f] An applicant shall not be issued a franchise if it files materially misleading information with the Township or intentionally withholds information that the applicant lawfully is required to provide.

[g] An applicant shall not be issued a franchise if an elected official of the Township holds a controlling interest in the applicant or an affiliate of the applicant.

[2] Notwithstanding the foregoing, the Township shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under § A309-4B(2)(c)[1][c], [d] and [e] by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom.

(d) A statement prepared by a duly authorized financial officer regarding the applicant's financial ability to complete the construction and operation of the cable system proposed.

(e) A description of the applicant's prior experience in cable system ownership, construction and operation and identification of communities in which the applicant or any of its principals have or have had a cable franchise or license or any interest therein.

(f) Identification of the area of the Township to be served by the proposed cable system, including description of the proposed franchise areas boundaries.

(g) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, head-end and access facilities. Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location, the proposed construction schedule, a description, where appropriate, of how services will be converted from existing facilities to new facilities and information on the availability of space in conduits, including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities.

(h) The proposed rate structure, including projected charges for each service tier, installation, converters and other equipment or services.

(i) A demonstration of how the applicant's proposal will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the proposal will meet the needs described in any recent community needs assessment conducted by or for the Township and how the proposal will provide adequate public, educational and governmental access channel capacity, facilities or financial support to meet the community's needs and interests.

(j) Pro forma financial projections for the proposed franchise term, including a statement of projected income and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.

(k) If an applicant proposes to provide cable service to an area already served by an existing franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area that would encompass the overbuild and the ability of the streets to accommodate an additional system.

(l) Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this ordinance or that bears on the applicant's qualifications to operate a cable system within the Township.

(m) Information that the Township may request of the applicant that is relevant to the Township's consideration of the application.

(n) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments and certifying that the proposal meets all federal and state law requirements.

(3) The Township shall review each application for a franchise to determine whether the public interest would be served by granting the same and shall consider in particular:

(a) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the Township.

(b) Whether the quality of the applicant's service under an existing franchise in Nether Providence, including signal quality, response to customer complaints and billing practices, has been reasonable in light of community needs and interests of the communities served.

(c) Whether the applicant has the financial, technical and legal qualifications to provide cable service.

(d) Whether the applicant's proposal is reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests.

(e) Whether, to the extent not considered as part of § A309-4B(3)(d), the applicant will provide adequate public, educational and governmental access channel capacity, facilities or financial support.

(f) Whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property which would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services or use of the public rights-of-way; the effect of granting a franchise on the ability to meet the cable-related needs and interests of the community; and, to the extent permissible pursuant to the provisions of the Cable Act, the comparative superiority or inferiority of competing proposals.

(g) Whether the applicant or an affiliate of the applicant owns or controls any other cable system in the Township or whether grant of the application may eliminate or reduce competition in the delivery of cable service in the Township.

(h) Any other factors that reasonably bear on the applicant's qualifications to operate a cable system in the Township.

(4) If the Township finds that it is in the public interest to issue a franchise considering the factors set forth above, it shall issue a franchise, subject to the applicant's entry into an appropriate franchise agreement. If the Township denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether to issue or not to issue a franchise, the Township may hold one or more public hearings or implement other procedures under which comments from the public on an applicant's proposal may be received. The Township also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application which is incomplete. This ordinance is not intended and shall not be interpreted to grant any applicant or existing franchisee standing to challenge the issuance of a franchise to another.

(5) If the Township grants a franchise subject to the applicant's entry into a franchise agreement, the Township and the franchisee shall agree on the terms of a franchise agreement within 30 calendar days from the date of the Township resolution granting the franchise. This period may be extended for good cause by the Township. If agreement is not reached with the Township within 30 calendar days from the date of the Township resolution granting the franchise, or if the period is not extended by the Township, the franchise will be null and void without further action by the Township. The Township shall approve or disapprove the proposed agreement by resolution or may direct that it be subject to further negotiation. In approving additional franchise agreements, each agreement will provide the same material obligations as the other(s) relating to franchise fees, customer service standards and service area.

C. The Township shall conduct renewal proceedings in accordance with Section 626 of the Cable Act, 47 U.S.C. § 546, as amended. If Section 626 of the Cable Act is repealed or for any other reason is inapplicable to a renewal proceeding, such proceeding shall be conducted as a proceeding on a request for initial franchise in accordance with Subsection B hereof.

D. Application for modification of a franchise. An application for modification of a franchise agreement shall include, at minimum, the following information:

(1) The specific modification requested;

(2) The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro forma;

(3) A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;

(4) Any other information that the applicant believes is necessary for the Township to make an informed determination on the application for modification; and

(5) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application and certifying that the application is consistent with all federal and state law requirements.

E. Filing fees. To be acceptable for filing, an application submitted after the effective date of this ordinance shall be accompanied by a filing fee in the following amount, as appropriate:

(1) For an initial franchise: $5,000.

(2) For renewal of a franchise: as specified in the franchise agreement.

(3) For modification of a franchise agreement: $1,000.

F. Public hearings. An applicant shall be notified of any public hearing held in connection with the evaluation of its proposal and shall be given an opportunity to be heard.

§ A309-5 System design.

Unless a review of future cable-related needs and interests shows that different standards should apply, every cable system must at least satisfy the following requirements:

A. Minimum capacity. Any cable system constructed, upgraded or reconstructed after the effective date of this ordinance at a minimum shall provide for the broad categories of programming and the cable-related needs of the community. The system shall be designed in accordance with all applicable FCC guidelines pertaining to consumer interfaces.

B. Description of system. The franchisee shall provide the Township as-built maps for the entire system, as modified or upgraded, to the extent such maps have not previously been provided to the Township.

C. Interconnection.

(1) A franchisee shall, at the request of the Township as specified in its franchise agreement, design the system so that it may be interconnected with other cable systems within the local school system.

(2) The franchisee shall, at the request of the Township, interconnect with other cable systems.

D. Provision of service. Unless otherwise specified in a franchise agreement, after cable service has been established by activating trunk distribution cable for an area specified in a franchise agreement, the franchisee shall provide cable service to any household, business and professional office requesting cable service within that area, including each multiple-dwelling unit in that area. In addition, the franchise shall provide each public, nonprofit private and parochial school, as well as the police station, two fire stations, the Furness Library, Township building, the Taylor Arboretum and the Leiper House, with a single cable television connection and basic and second tier service without charge. Additional connections and service will be charged to the facility by the franchisee at cost to the franchisee of time and materials only.

E. Technical standards.

(1) Any cable system within the Township shall meet or exceed the technical standards set forth in 47 C.F.R. Subpart K and any other applicable technical standards as specified in a franchise agreement.

(2) A franchisee shall not design, install or operate its facilities in a manner that will interfere with the signals of any broadcast station, the facilities of any public utility, the cable system of another franchisee or individual or master antennas used for receiving television or other broadcast signals.

(3) At the times specified in the franchise agreement or as required by FCC rules, the franchisee shall perform, at its expense, proof of performance tests and such other tests as may be specified in the franchise agreement designed to demonstrate compliance with this section, the franchise agreement, and FCC requirements. The franchisee shall provide the proof of performance test results promptly to the Township. The Township may require in each franchise agreement that the franchisee shall provide the Township 10 days' advance written notice when a proof of performance or other required test is scheduled so that the Township may have an observer present. The Township shall have the right to inspect the cable system facilities during and after their construction to ensure compliance with this section, the franchise agreement and applicable provisions of local, state and federal law and may require in a franchise agreement that the franchisee perform additional tests based upon its prior investigation of system performance or upon subscriber complaints.

§ A309-6 Minimum facilities and service.

A. Emergency alert system. In accordance with FCC rules, the franchisee shall comply with the provisions set forth in federal regulations as well as any local emergency alert system to afford viewers emergency information pursuant to regulations (47 C.F.R. Sect. 11.1 et seq., FCC Rules and Regulations - EAS).

B. Access channels.

(1) The franchisee shall reserve for use by the Township, without charge, a portion of its downstream channel capacity for public, educational and governmental use, which portion shall not exceed the limits imposed by Section 612 of the Cable Act, 47 U.S.C. Section 532. The Township shall have sole discretion as to use of the governmental station, including but not limited to all programming, as allowed by federal communications law.

(2) The franchisee shall provide all modulators, demodulators, laser transmitters/receivers and other devices as may be required to permit use of the upstream and downstream capacity, and that, after such technology is developed, upon the Township's request, the franchisee shall make such modifications as may be required to use video compression technology and any other new technologies that may require two-way capability and add such equipment in connection with all or part of the upstream and downstream channel.

(3) An additional access channel will be made available when all existing public, educational and governmental (PEG) channels simultaneously carry nonduplicated, locally produced access programming, none of which is character generated, continuously for a period of 90 consecutive days.

C. Studio and equipment.

(1) The franchisee shall provide to the Township reasonable access to a facility located within 10 miles of the Township which shall include an adequate studio, with access to equipment, and production staff assistance will be provided by the franchisee for use by persons authorized by the Township on a basis of four hours per month for training and two hours per month for production work. Additional training and production time will be provided if it can be reasonably accommodated by the franchisee. The franchisee shall provide for the Township, at no direct or indirect charge, a video camera and tripod, to be kept at the municipal facility, along with proper lighting and sound equipment to provide excellent playback quality of Township programming. The franchisee shall provide at the municipal facility a character generator (or similar equipment to transmit public announcements over the governmental access station), automated playback equipment and control facilities so that signals can be received on the upstream channels or originated from the municipal facility and then routed from the municipal facility to the system head-end and onto appropriate channels on the cable system. There shall be no direct or indirect charge for this equipment.

D. Remote line telecasting.

(1) Upon reasonable notice from the Township, the franchisee shall provide upstream channel capacity for live telecasts from such public buildings as may be specified in the franchise agreement. At a minimum, the franchisee will broadcast live all legislative sessions of the Township Commissioners. The cost of carrying such coverage, including but not limited to the cost of a camera operator, shall be borne by the franchisee. There shall be no direct or indirect charge for this service.

(2) The franchisee shall make available all devices necessary to accomplish upstream telecasts through such public facilities.

E. Advisory Council on Cable Television.

(1) An Advisory Council on Cable Television may be established upon enactment of this ordinance. The Council shall consist of three members appointed by the Township Commissioners, who shall reflect the diverse community interests of the Township and shall serve for terms of three years. For the initial appointments, one member shall be appointed for one year, one member shall be appointed for two years and one member shall be appointed for three years. A vacancy shall be filled by the Township Commissioners by appointment for the remainder of the unexpired term of the member whose position is vacant. No individual employed by or who has an ownership interest in a franchise granted pursuant to the ordinance shall be eligible for membership on the Advisory Council. The Chairperson of the Advisory Council shall be elected by the members of the Advisory Council for a term of one year. Appropriations shall be made from time to time by the Township Commissioners to fund the Advisory Council from fees paid to the Township by the franchisee pursuant to this ordinance.

(2) The Advisory Council may have the following functions:

(a) Advise the Township on applications for franchises and renewals and modifications of existing franchises.

(b) Advise the Township on matters which may be grounds for revocation of the franchise or imposition of penalties on the franchisee under the provision of this ordinance.

(c) Advise the Township with respect to rates, policies regarding services to subscribers and to the operation and use of the access channels.

(d) Perform audits of the records of the franchisee as required by this ordinance, and in the Advisory Council's discretion, require preparation and filing of information in addition to that required hereunder if reasonably necessary to the performance of its functions.

(e) Report annually to the Township Commissioners regarding franchise fees received and distributed, the total hours of utilization of the public access channels and hourly subtotals for various programming categories and including a review of any plans submitted during the year by the franchisee for development of new services.

(f) Conduct an evaluation of the system at least every three years in consultation with the franchisee, utilizing technical consultants, if necessary, who shall be paid from franchise fees received by the Township from the franchisee, and make recommendations to the Township for amendments to this ordinance.

(g) Manage, promote and develop the best use of the channels, equipment and facilities for public, educational and governmental use provided by this ordinance or in any franchise agreement and, in particular, shall promote the use of and set policy for the use of public, educational and governmental channels with the consent of the Township Commissioners.

§ A309-7 Construction provisions.

A. System construction schedule. The franchisee shall specify the construction schedule.

B. Construction standards.

(1) The construction, operation, maintenance and repair of the cable system shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended, the National Electrical Safety Code, the National Electric Code, other applicable federal, state or local laws and regulations that may apply to the operation, construction, maintenance or repair of a cable system, including, without limitation, applicable local zoning and construction codes and laws and accepted industry practices, all as hereafter may be amended or adopted.

(2) All installation of electronic equipment shall be of a permanent nature, using durable components.

(3) Without limiting the foregoing, antennas and their supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local laws, codes and regulations, all as hereafter may be amended or adopted.

(4) Without limiting the foregoing, all the franchisee's plant and equipment, including, but not limited to, the antennae site, head-end and distribution system, towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures and apparatuses shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the Township shall deem appropriate to make or to interfere in any manner with the rights-of-way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.

(5) The franchisee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.

(6) Any and all streets, public property or private property which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or construction of the system shall be promptly repaired by the franchisee at its expense.

(7) A franchisee shall, at its expense, and by a time specified by the Township, protect, support, temporarily disconnect, relocate or remove any of its property when required by the Township 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 Township would be served thereby; provided, however, that the franchisee shall, in all such cases, have the privilege of abandoning any property in place. The Township 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.

(8) 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 the responsible entity. The Township may resolve disputes as to responsibility for costs associated with the removal, relaying or relocation of facilities as among entities authorized to install facilities in the public streets if the parties are unable to do so themselves.

(9) 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 Township may remove, relay or relocate that cable system without prior notice. When possible, the Township will make reasonable efforts to notify the franchisee and give the franchisee reasonable opportunity to cure.

(10) A franchisee shall, on the request of any person holding a building moving permit issued by the Township, 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 Township, in which case no such payment shall be required. The franchisee shall be given not less than 10 calendar days' advance notice to arrange for such temporary wire changes.

(11) A franchisee shall have the authority to trim trees that overhang a street of the Township so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee. Such trimming must be done under the supervision and direction of the Township but at the expense of the franchisee.

(12) A franchisee must use existing underground conduits or overhead utility facilities whenever feasible and may not erect poles or place equipment in public rights-of-way without notification to the Township at least 48 hours prior to the installation. Copies of agreements for use of conduits or other facilities shall be filed with the Township.

(13) On streets where electrical and telephone utility wiring is 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. In the event that the telephone or electric utilities are reimbursed by the Township for the placement of cable underground or the movement of cable, the franchisee shall be reimbursed on the same terms and conditions as the telephone or electric utilities.

(14) 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 Township may issue 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 ordinance and the franchise agreement. The Township 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.

(15) 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 Township of their use of any street or any other public right-of-way.

(16) Prior to erection of any towers, poles or conduits or the construction, upgrade or rebuild of a system authorized under this ordinance, the franchisee shall first submit to the Township and other designated parties in accordance with applicable municipal ordinances for approval 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. There shall be no erection or installation of any tower, pole, underground conduit or fixture or any without 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 Township.

(17) Any contractor proposed for work or construction, installation, operation, maintenance or repair of system equipment shall meet the performance standards and be insured and bonded in accordance with the standards of the franchisee.

(18) In the event 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 such system or property has been installed in any street without complying with the requirements of this ordinance or a franchise agreement or the franchise has been terminated or canceled or has expired, the franchisee, within 30 days after written notice by the Township, shall commence removal from the streets of all such property as the Township may require.

(19) The Township may extend the time for the removal of abandoned facilities for a period not to exceed 180 days.

(20) In the event of such removal or abandonment, the franchisee shall restore the area to a condition satisfactory to the Township.

C. 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 Township Manager and by notifying those persons most likely to be affected by the work by telephone, in person, by mail, by distribution of flyers to residences 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.

§ A309-8 Operation and reporting provisions.

A. Open books and records. The Township 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 system serving the Township and which are required to perform its regulatory and compliance monitoring responsibilities under the terms of this ordinance, a franchise agreement or applicable law.

B. Reports required. The franchisee shall, upon request, file the following reports with the Township:

(1) All reports required by the 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 Security and Exchange Commission (SEC) or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's system.

(2) 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 Township. The annual report shall be provided in February.

(3) Construction reports will, at the request of the Township, be sent to the Township 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 in the franchise.

(4) Proof of performance test results, at the request of the Township, will be supplied to the Township when sections of the system are rebuilt and as required in this ordinance.

(5) Technical tests required by the Township as specified in this ordinance and the franchise agreement, at the request of the Township, will be submitted to the Township promptly upon completion of such tests.

(6) The following financial reports for the franchise area, submitted annually to the Township 90 days after the end of the franchisee's fiscal year:

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

(b) An annual profit and loss statement, year-end balance sheet and cash-flow statement, certified by a certified public accountant; an income statement showing subscriber revenue from each category and source of service provided in the Township.

(c) An annual list of officers and members of the Board of Directors of the franchisee and any parent organization.

(7) The following system and operational reports shall be made available at no cost to the Township upon request:

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

(b) A report on programs and services offered by the franchisee, including public, educational, governmental and leased access channels.

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

(d) An annual summary of complaints received and handled in addition to any reports required in the franchise.

(8) The franchisee shall maintain and supply upon request 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 Township in connection with this ordinance or the franchise.

C. Records required.

(1) The franchisee shall at all times maintain:

(a) All complaints generating work orders received the preceding 12 months.

(b) 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 Township, exclusive of subscriber service drops.

(c) An annual profit and loss statement, year-end balance sheet and cash-flow statement, certified by a certified public accountant; an income statement showing subscriber revenue from each category and source of service provided in the Township.

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

(2) The Township may impose reasonable requests for additional information, records and documents from time to time.

D. Performance evaluation.

(1) The Township may hold scheduled performance evaluations every 30 months. All such evaluation sessions shall be open to the public.

(2) Special evaluation sessions may be held at any time during the term of the franchise at the request of the Township. If requested by the Township, such sessions shall be mandatory following any event that has caused major disruption affecting more than 25% of the franchisee's customers in the Township for a period of more than 10 days.

(3) 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.

(4) 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 ordinance and the franchise, 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.

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

§ A309-9 Consumer protection provisions.

A. Customer service requirements. Every franchise agreement shall require a franchisee to comply with all applicable federal, state and local customer service requirements.

§ A309-10 Rate regulation.

A. Rate charge and rate schedule.

(1) Each franchisee shall, in accordance with the provisions of the Cable Act and the applicable FCC regulations, provide information as to its monthly rates, installation and all other charges, including but not limited to equipment fees, late fees and other administrative charges, if any. The franchisee may bill in advance for monthly services and impose reasonable late fees.

(2) The franchisee shall give subscribers at least 30 days' notice of its intention to change monthly rates, equipment charges and installation charges by mailing notices thereof to each of the current subscribers to whom such charges will apply. The franchisee shall give the Township Manager or his/her designee 30 days' advance notice of any rate change.

(3) The franchisee shall not, as to rates, charges, services or facilities, make or grant any undue privilege or advantage to any party nor subject any party to undue prejudice or disadvantage, provided that the franchisee may establish reasonable classifications of customers. In accordance with Section 623(e) of the Cable Act, 47 U.S.C. § 543(e), nothing in this ordinance prohibits the reduction or waiver of charges in connection with temporary promotional campaigns or providing a senior citizen discount, provided that the same waivers are provided to all similarly situated customers. Moreover, nothing shall prohibit the franchisee from entering into service arrangements (with discounts and special terms) with large residential communities or dwellings (including apartments, condominiums and other dwelling units), hotels/motels and mobile home parks located within the Township.

B. Local regulatory framework. The Township shall regulate all rates and charges to the extent it is allowed to do so by law, provided that the Township is certified to regulate rates pursuant to the Cable Act. No rate or charge may be imposed without prior notification to the Township except such rates and charges that the Township is prohibited from regulating. Subject to the foregoing, any change made without prior notification is an illegal change, and the franchisee is prohibited from requesting or requiring a subscriber to pay an illegal rate as a condition of providing services. The Township may adopt such regulations, procedures and standards as it deems necessary to implement rate regulation and may regulate rates by amendment to this ordinance, by a separate resolution or ordinance, by amendment to a franchise agreement or in any other lawful manner; provided, however, that nothing contained in this section shall conflict with the provisions of Section 623 of the Cable Act, 47 U.S.C. § 543, and rules promulgated by the FCC thereunder.

§ A309-11 Franchise fee.

A. Finding. The Township finds that the streets and public rights-of-way of the county, state and Township to be used by the franchisee for the operation of a cable television system are valuable public property acquired and maintained by the county, state and Township at great expense to the taxpayers. The Township further finds that the grant of a franchise to use the public streets and rights-of-way is a valuable property right, without which the franchisee would be required to invest substantial capital.

B. Payment to Township.

(1) The Township shall be paid a franchise fee in an amount no less than 5% of a franchisee's gross annual receipts. Gross receipts shall include any and all compensation and other consideration received by the franchisee from subscribers from the sale of its services and facilities within the limits of the Township, including the original installation charges, reconnection charges, service charges, repair or modifications to installations and any and all revenues from advertising and from shopping commissions and shall also include any and all other compensation from whatever source. In the event that the maximum amount permitted under applicable law is greater than 5%, then the Township 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. Increases in the franchise fee rate shall be pursuant to approval by the Board of Commissioners and will be implemented as soon as practical but no later than 60 days.

(2) 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.

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

(4) No acceptance of any payment by the Township shall be construed as a release or an accord and satisfaction of any claim the Township may have for further or additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the franchisee.

(5) 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 Township's primary depository bank during the period such unpaid amount is owed.

(6) The franchise fee and any other costs assessed by the Township against a franchisee shall be paid quarterly to the Township 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 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 Township no later than 45 days following the end of each calendar quarter ending the last days of the months of March, June and September and no later than 60 days following the end of December. The Township may require in a franchise agreement that an annual statement of gross revenues shall be furnished to the Township 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.

(7) The Township 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 ordinance for a period of three years from the date of payment. Audits shall be at the expense of the Township unless the audit discloses an underpayment of greater than 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 Township as a result of the audit shall be paid within 30 days following written notice to the franchisee by the Township 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 Township 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) The Township may require in a franchise agreement that the franchisee shall maintain its fiscal and financial records in such a manner as to enable the Board to determine the cost of assets of the franchisee which are used in providing cable services within the Township.

§ A309-12 Insurance; surety; indemnification.

A. Indemnification, insurance and bonding. The franchisee shall be indemnified, insured and bonded as prescribed in the franchise agreement.

B. Indemnification for Cable Act claims. The franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the Township, 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 channel set aside for public, educational or government use or 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 adopts a policy of prescreening programming for the purported purpose of banning indecent or obscene programming. Nothing herein shall prohibit the Township from participating in the defense of any litigation by its own counsel and obtaining indemnification for the costs associated therewith.

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

§ A309-13 Security fund.

A. Security deposit. A franchise agreement may provide that, prior to the effective date of the franchise, the franchisee shall post with the Township 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 ordinance, the franchise agreement and other applicable law and compliance with all orders, permits and directions of the Township and the payment by the franchisee of any claims, liens, fees or taxes due the Township which arise by reason of the construction, operation or maintenance of the system. The amount of the security fund shall be $50,000.

B. Surety bond. In any franchise agreement entered into before the effective date of this ordinance, the Township and franchisee may agree that the franchisee may, in lieu of the security fund, file and maintain with the Township a bond with an acceptable surety in the amount of $100,000 to indemnify the Township against any losses it may suffer in the event the franchisee fails to comply with one or more of the provisions of its 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 Township 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 Township 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 Township nor the receipt of any damages recovered by the Township thereunder shall be construed to excuse faithful performance by the franchisee or limit the liability of the franchisee under the terms of its franchise for damages, either to the full amount of the bond or otherwise.

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

D. Procedures. The franchise agreement shall provide for the procedures to be followed with respect to drawing upon the security fund and surety bond.

§ A309-14 Performance bond.

A. Establishment of performance bond. Prior to any cable system construction, upgrade or other work in the streets, a franchisee shall establish in the Township's favor a performance bond in an amount specified in the franchise agreement or other authorization as necessary to ensure the franchisee's faithful performance of the construction, upgrade or other work. The amount of such performance bond shall not exceed $100,000.

B. Recovery under performance bond. In the event that 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 the franchise agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the Township 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 Township 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.

C. The Township shall provide to the franchisee reasonable notice and opportunity to cure. For any alleged failure, the Township shall give written notice and the franchisee shall have 30 days to demonstrate no failure exists, or to correct any failure or, if the failure cannot be corrected within 30 days, submit a plan satisfactory to the Township to correct the failure.

D. Changes to amount of performance bond. The franchise agreement shall specify that, 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 Township, the Township 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. The Township may subsequently require a new bond or an increase in the bond amount for any subsequent construction, upgrade or other work in the streets. In any event, the total amount of the bond shall equal 15% of the cost of the work but shall not exceed $100,000.

E. 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 Township; and shall contain the following endorsement:

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

F. Performance bond in addition to all other Township rights. The rights reserved by the Township with respect to any performance bond established pursuant to this ordinance are in addition to all other rights and remedies the Township may have under this ordinance, the franchise agreement or at law or equity.

§ A309-15 Enforcement remedies.

A. Available remedies. In addition to any other remedies available at law or equity, the Township may apply any one or a combination of the following remedies in the event that a franchisee violates this ordinance, its franchise agreement or applicable state or federal law:

(1) Impose liquidated damages in such amount, whether on a per diem, per incident or other measure of violation, as provided in the franchise agreement. Payment of liquidated damages by the franchisee will not relieve the franchisee of its obligation to comply with the franchise agreement and the requirements of this ordinance.

(2) Revoke the franchise pursuant to the procedures specified in this ordinance.

(3) In addition to or instead of any other remedy, the Township may seek legal or equitable relief from any court of competent jurisdiction.

(4) Impose penalties available under state and local law for violation of Township ordinances.

B. Determination of appropriate remedies. In determining which remedy or remedies are appropriate, the Township 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 Township determines are appropriate to the public interest.

§ A309-16 Transfers.

A. Township approval required. No transfer shall occur without prior approval of the Township.

B. Application. An application for a transfer shall provide complete information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee and on the potential impact of the transfer on subscriber rates and service. At a minimum, the information required in § A309-4B(2) of this ordinance shall be provided with respect to the proposed transferee.

C. Determination by Township. In making a determination as to whether to grant, deny or grant subject to conditions an application for a transfer of a franchise, (which determination the Township shall make in accordance with Section 617 of the Cable Act, 47 U.S.C. § 537), the Township shall consider the legal, financial and technical qualifications of the transferee to operate the system; whether the incumbent cable operator is in compliance with its franchise agreement and this ordinance and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other cable system in the Township or whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the Township; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the Township's interest under this ordinance, the franchise agreement or other applicable law or make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost. The Township reserves the right to review the purchase price of any transfer or assignment of a cable 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.

D. Transferee's agreement. No application for a transfer of a franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this ordinance and the franchise agreement and that it will assume the obligations and liabilities known and unknown of the previous franchisee under this ordinance and the franchise agreement.

E. Approval does not constitute waiver. Subject to applicable statutes of limitations, approval by the Township of a transfer of a franchise does not constitute a waiver or release of any of the rights of the Township under this ordinance or the franchise agreement pertaining to a franchisee's operation of a cable system under this ordinance or a franchise agreement and before the date of the transfer.

§ A309-17 Revocation or termination of franchise.

A. Basis for revocation. A franchise may be revoked by the Township for a franchisee's failure to construct, operate or maintain the cable system as required by this ordinance or the franchise agreement, for defrauding or attempting to defraud the Township or subscribers, if the franchise is declared bankrupt, or for any other material violation of this ordinance or material breach of the franchise agreement. To invoke the provisions of this section, the Township 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 Township 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 Township, the Township 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 Township or its subscribers or in the event that the franchisee is declared bankrupt. In the case of a fraud or attempted fraud, the franchise may be revoked after the hearing required under § A309-17B; revocation for bankruptcy shall be governed by § A309-17C.

B. Procedure. Prior to revoking a franchise, the Township 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 Township may determine whether to revoke the franchise based on the information presented at the hearing and other information of record. If the Township 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.

C. Revocation after bankruptcy. Any franchise may, at the option of the Township following a public hearing before the Board of Commissioners, 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:

(1) Such assignment, receivership or trusteeship has been vacated; or

(2) Such assignee, receiver or trustee has fully complied with the terms and conditions of this ordinance and the franchise agreement 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 ordinance and the franchise agreement and such other conditions as may be established or as are required pursuant to § A309-16.

D. Revocation after foreclosure. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the Township may revoke the franchise, following a public hearing before the Township, 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:

(1) The Township has approved the transfer of the franchise to the successful bidder; and

(2) The successful bidder has covenanted and agreed with the Township to assume and be bound by the terms and conditions of the franchise agreement and this ordinance and such other conditions as may be established or as are required pursuant to § A309-16.

E. Rights on revocation. If the Township 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:

(1) The Township 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 Township may have the removal done at the former franchisee's and/or surety's expense.

(2) In the event of revocation, the Township, by resolution, may acquire ownership of the cable system at an equitable price.

(3) 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 Township and the Township may sell, assign or transfer all or part of the assets of the system.

§ A309-18 Rights of individuals protected.

A. Discriminatory practices prohibited. The franchisee shall not deny service, deny access or otherwise discriminate against subscribers, programmers or residents of the Township on the basis of race, color, religion, national origin, sex or age. Notwithstanding the foregoing, the franchisee may offer price discounts to senior citizens. Moreover, nothing shall prohibit the franchisee from entering into service agreements (with discounts and special terms) with apartments, condominiums and other dwelling units, hotels/motels and mobile home parks located within the Township. The franchisee shall comply at all times with all applicable federal, state and Township laws and all executive and administrative orders relating to nondiscrimination.

B. Equal employment opportunity. A franchisee shall not refuse to employ, discharge from employment or discriminate against any person in compensation or in terms, conditions or privileges of employment because of race, color, religion, national origin, sex or age. The franchisee shall comply with federal, state and local laws and regulations governing equal employment opportunities as the same may be from time to time amended.

C. Subscriber privacy. A franchisee shall at all times protect the privacy of all subscribers pursuant to the provisions of Section 631 of the Cable Act, 47 U.S.C. § 551. A franchisee shall not condition subscriber service on the subscriber's grant of permission to disclose information which, pursuant to federal or state law, cannot be disclosed without the subscriber's explicit consent.

§ A309-19 Miscellaneous provisions.

A. Compliance with laws. The franchisee and the Township shall comply with all applicable federal, state and Township laws and regulations as they become effective, unless otherwise stated.

B. Severability. If any term, condition or provision of this ordinance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the Township and shall thereafter be binding on the franchisee and the Township.

C. Emergency use. Upon request of the Township, the franchisee shall, at its sole expense, make available systems and related facilities to the Township for use during any emergency or disaster.

D. Captions. Captions and headings of this ordinance are for convenience and reference purposes only and shall not affect in any way the meaning and interpretation of any provisions of this ordinance.

E. Calculation of time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, payment or thing is required hereunder and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time. When the last day of the period falls on a Saturday, Sunday or a legal holiday, that day shall be omitted from the computation.

§ A309-20 Effective date, publication and time of acceptance.

A. Publication; effective date. All franchises shall be signed by the President of the Board and attested to by the Township Manager. The franchise shall be published in accordance with the requirements of the Township and state law and shall take effect after it has been accepted by the franchisee and the franchisee and the Township have signed a franchise agreement and satisfied all conditions precedent set forth therein.

B. Franchisee bound. Upon acceptance of a franchise, the franchisee shall be bound by all terms and conditions contained herein, in the franchise agreement and in its application to the extent incorporated in the franchise agreement.

Article II Verizon Franchise Agreement

[Adopted 3-8-2007 by Ord. No. 719]

§ A309-21 Grant of franchise; execution of franchise agreement.

The Township hereby grants Verizon a nonexclusive cable franchise subject to and in accordance with the terms and conditions of the Cable Franchise Agreement between the Township and Verizon, including, without limitation, each and all of the side letters attached thereto (collectively the "Verizon Franchise Agreement"). A copy of the Verizon Franchise Agreement and related side letter agreements are attached hereto and made a part hereof as Exhibits A, B and C.[1]

[1] Editor's Note: Said exhibits are on file in the Township offices.

§ A309-22 Conflicts with Cable Ordinance.

In the event of any conflict between the terms of the Cable Ordinance[1] and this ordinance, the terms of this Ordinance shall be controlling.

[1] Editor's Note: See Art. I, Cable Communication Regulatory Code.

§ A309-23 Other franchises unaffected.

Nothing in this ordinance, including the Verizon Franchise Agreement, shall alter the terms of any other franchise, franchise agreement or franchise license previously granted by the Township pursuant to the Cable Ordinance, each of which shall remain in effect according to their particular terms and conditions.

§ A309-24 Severability.

If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not render this ordinance invalid.