City of Pottsville, PA Chapter A226 Cable Television Franchise

[HISTORY: Adopted by the City Council of the City of Pottsville 9-9-2002 by Ord. No. 677; amended in its entirety 7-11-2005 by Ord. No. 721. Subsequent amendments noted where applicable.]

GENERAL REFERENCES

Electrical standards — See Ch. 112.

Streets and sidewalks — See Ch. 194.

§ A226-1 Purpose.

A. The City of Pottsville finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the people of Pottsville. Because of the complex and rapidly changing technology associated with cable television, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory power which should be vested in the City or such persons as the City shall designate pursuant to a new ordinance replacing Ordinance No. 215-76 which presently regulates cable television in the City of Pottsville.[1] It is the intent of this ordinance to provide for and specify the means to attain the best possible public interest and public purpose in these matters, and any franchise issued pursuant to this ordinance shall be deemed to include this finding as an integral part thereof.

[1] Editor's Note: Prior to enactment of this Ord. No. 721, Ord. No. 677, adopted 9-9-2002, regulated cable television in the City of Pottsville.

B. Further, it is recognized that cable systems have the capacity to provide not only entertainment and information services to the City's residents, but can provide a variety of broadband, interactive communications services to institutions and individuals. Many of these services involve City agencies and other public institutions by providing governmental, educational or health care communications.

C. It is further recognized that cable systems and services are rapidly changing and will continue to change in the future.

D. For these purposes, the following goals underlie the regulations contained herein:

(1) Communications services should be provided to the maximum number of City residents.

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

(3) The cable system authorized by this ordinance shall be responsive to the needs and interests of the local community and shall provide the widest possible diversity of information sources and services to the public.

§ A226-2 Title.

A. This ordinance shall be known and may be cited as "Pottsville Cable Communications Regulatory Ordinance," and it shall become a part of the ordinances of the City.

B. This ordinance shall take effect and be in force from and after its passage and publication.

C. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.

D. The previous cable television regulatory ordinance, Ordinance No. 215-76, is hereby superseded by this ordinance.[1]

[1] Editor's Note: Prior to enactment of this Ord. No. 721, Ord. No. 677, adopted 9-9-2002, regulated cable television in the City of Pottsville. Therefore, Ord. No. 215-76 had previously been superseded by various other cable television related ordinances.

§ A226-3 Word usage and definitions.

A. When not inconsistent with the context, words used in the present tense include the future, and words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall have the meanings ascribed to them in the cable Communications Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521-611 (the "Cable Act"). Words not defined herein or in the Cable Act shall be given their common and ordinary meanings.

B. For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein:

ACCESS CHANNELS

Channel capacity designated for public, educational or governmental access use, as well as the facilities and equipment required for the use of such channel capacity.

AFFILIATE

Each person, directly or indirectly, controlling, controlled by, or under common control with the franchisee; provided that affiliate shall in no event mean any limited partner or shareholder holding an interest of less than 35% of such franchisee, or any creditor of such franchisee solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such franchisee.

BASIC CABLE SERVICE

Shall have the meaning given in 47 U.S.C. § 522(3), as it may be amended from time to time. Currently, this provision defines basic cable service as any service tier which includes the retransmission of local television broadcast signals.

BASIC SUBSCRIBER RADIO SERVICE

Such audio services as the retransmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC.

CABLE ACT

The Cable Communications Policy Act of October 30, 1984, P.L. 88-549, § 2, 98 Stat 2780 (codified at 47 U.S.C. §§ 521-611 [1982 & Supp, V. 1987)] as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L,. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104, as may, from time to time, be amended.

CABLE SERVICE

(1) The one-way transmission to subscribers of video programming or other programming service;

(2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

CABLE 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 a community, but such term does not include:

(1) A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(2) A facility that serves subscribers without using any public rights-of-way;

(3) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility shall be considered a cable system [other than for purposes of section 621 (c)] to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(4) An open video system that complies with § 653 of the Cable Act; or

(5) Any facilities of any electric utility used solely for operating its electric utility systems.

CHANNEL or CABLE CHANNEL

Shall have the meaning given in 47 U.S.C. § 522(4), as it may be amended from time to time. Currently, this provision defines "channel" as a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the Federal Communications Commission.

CITY or GRANTOR

The City of Pottsville, Pennsylvania.

COMMENCE OPERATION

That time and date when operation of the cable system is considered to have commenced, which shall be when the system is fully constructed, or the adoption of this ordinance and the entering into of a franchise pursuant hereto; whichever shall last occur; however, such term does not include the renewal of an existing franchise.

COUNCIL

The Council of the City of Pottsville.

CUSTOMER COMPLAINT

Shall have the meaning as set forth in FCC Regulation 76.309 and shall only include a written communication addressed to the local business office of grantee regarding cable service or cable system operations requiring subsequent corrective action to the system or any portion thereof.

DROP

A coaxial or other connection from feeder cable to the subscriber/user television set or other terminal point.

FCC

The Federal Communications Commission and any legally appointed or elected successor entity or organization.

FRANCHISE

An initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to section 626 of the Cable Act) issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction and operation of a cable system.

FRANCHISE AGREEMENT

A franchise granted pursuant to this ordinance, containing the specific provisions of the franchise granted, including references, specifications, requirements, and other related matters.

FRANCHISE AREA

The entire City or portions thereof for which a franchise is granted under the authority of this ordinance. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the City, including all territory thereafter annexed to the City.

FRANCHISEE or GRANTEE

The natural person(s), partnership(s), domestic and foreign corporation(s), association(s), joint venture(s) or organization(s) of any kind which has been legally granted a franchise by the City, and its lawful successor, transferee or assignee.

FRANCHISE FEE

Any tax, fee or assessment of any kind imposed by the City or other governmental entity on a grantee or on a cable subscriber, or both, solely because of their status as such.

GRANTOR

The City of Pottsville as represented by the City Council, acting within the scope of its jurisdiction and in accordance with applicable federal, state and local laws.

GROSS ANNUAL REVENUES

Revenue (revenue minus bad debts) received by the grantee from the operation of the cable system to provide cable service within the franchise area, in accordance with generally accepted accounting principles, including but not limited to, monthly basic, premium and pay-per-view service fees (but excluding any portion of such revenues paid by grantees to suppliers of such services), installation fees and equipment rental fees. "Gross annual revenue" shall not include cable system taxes imposed by law on subscribers which the grantee is obligated to collect; any investment income earned by the grantee; and advertising commissions deducted by advertising agencies before advertising revenues are paid over to the grantee. These items shall be paid to the City whether they are earned directly by grantee or by an affiliated entity of grantee which provides cable services over the cable system. Payments by grantee for City business privilege tax amounts due shall not be a set off against any computation of gross annual revenues.

INSTALLATION

The connection of the cable system from feeder cable to subscribers' terminals and the provision of cable service.

INSTITUTIONAL NETWORK or I-NET

Dedicated capacity and equipment, both upstream and downstream, to provide video, voice and data communication services to nonresidents.

INSTITUTIONAL USERS

Governmental, educational, and other nonprofit publicly funded users delineated in the individual franchise, as may be amended from time to time with the consent of franchisee.

LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL

Any channel designated or dedicated for use by persons unaffiliated with the grantee, at rates which are fair and reasonable.

LOCAL ORIGINATION PROGRAMMING

Programming which may be produced by the grantee or another designated entity. This programming may be commercial in nature.

NORMAL BUSINESS HOURS

Those hours during which most similar businesses in the community are open to serve customers. In all cases, normal business hours will include some evening hours at least one night per week and/or some weekend hours.

NORMAL OPERATING CONDITIONS

Those service conditions which are within the control of the franchisee. Those conditions which are not within the control of the franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the franchisee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

OPEN VIDEO SERVICES or OVS

Any video programming services provided to any person by a franchisee certified by the FCC to operate an open video system pursuant to Section 47 U.S.C. § 573, as may be amended, regardless of the facilities used.

PAY TV

The delivery over the system of per-channel or per-program programming to subscribers for a separate fee or charge from basic cable service.

PERSON

An individual, partnership, association, organization, corporation or any lawful successor transferee of said individual, partnership, association, organization or corporation.

PLANT MILE

A linear mile of strand-bearing cable as measured on the street or easement from pole to pole or pedestal to pedestal.

PREMIUM SERVICES

Programming or services for which an additional charge is made beyond the charge for basic subscriber television services, including but not limited to movies, concerts, variety acts, sporting events and pay-per-view programs.

PROGRAMMER

Any person or entity who or which produces or otherwise provides programs, material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of the cable system.

PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL, COMMUNITY CHANNEL

Any channel designated or dedicated for use by the general public or noncommercial organizations which is made available for use on a first-come-first-served, nondiscriminatory basis.

PUBLIC BUILDING

Any building identified in the applicable franchise, which is owned, occupied, operated, and controlled by the City.

PUBLIC PROPERTY

Any real property owned, occupied and controlled by the City.

PUBLIC 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, park, parkways, waterways, utility easements or other public right-of-way under the jurisdiction of the City, including property over which the City has a sufficient easement or right-of-way.

RENEWAL

A new cable franchise granted to an existing franchisee.

RESIDENT

Any person residing in the City as otherwise defined by applicable law.

RESIDENTIAL SUBSCRIBER

A subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession.

RIGHTS-OF-WAY

A public way as defined herein.

SALE

Includes any sale, exchange, barter or offer for sale.

SCHOOL

Any public or nonprofit educational institution, receiving funding pursuant to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq., as amended from time to time.

SERVICE INTERRUPTION

The loss of picture or sound on one or more cable channels.

STANDARD INSTALLATION

Any service installation that can be completed using a drop of 125 feet or less from the existing cable plant.

STATE

The Commonwealth of Pennsylvania.

STREET

Includes each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public ways and similar ways and extensions and additions thereto, together with such other public property and areas that the City shall permit to be included within the definition of "street" from time to time.

SUBSCRIBER

Any person who or which lawfully elects to subscribe to, for any purpose, a cable service provided by the grantee by means of or in connection with a cable system, and who pays the charges therefor, except such persons or entities authorized to receive cable service without charge as described in the franchise agreement.

TRUNK LINE

The major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers.

§ A226-4 Grant of franchise.

A. Grant.

(1) In the event that the City shall grant to the grantee a nonexclusive franchise to construct, operate and maintain a cable system within the City, said franchise shall constitute a right to provide the services of a cable system as regulated by the provisions of this ordinance and the franchise agreement.

(2) The franchise shall be granted under the terms and conditions contained herein, consistent with applicable statutory requirements. In the event of conflict between the terms and conditions of this ordinance, the franchise agreement, applicable local statutory law or regulations covering the terms and conditions on which the City can grant a franchise, every effort shall be made for the franchise agreement to be upheld, and therefore, the terms of the franchise agreement shall ultimately control.

(3) Any franchise granted by the City is hereby made subject to the general police power ordinance provisions now in effect or to the full extent allowable by law hereafter adopted. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the City regarding taxes, permits, fees to be paid or manner of construction.

B. Use of public streets and ways. For the purpose of operating and maintaining a cable system in the City, the grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary or desirable to the operation of the cable system; provided, however, that the grantee complies with all lawful design, construction, safety and performance provisions contained in this ordinance, the franchise agreement and other applicable local ordinances.

C. Use of City facilities. At the City's option, the City may permit a grantee to utilize City-owned conduit or other facilities for any portion of its cable system. The consideration for the use of City conduit or other facilities shall be as stated in the franchise agreement. A reasonable fee for the use of City facilities shall be established in the franchise agreement and may be adjusted by agreement of the City and the grantee at the periodic performance evaluations.

D. Use of grantee facilities. Except replacement poles, no new poles shall be erected by the grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect, in accordance with applicable City Code provisions. The grantee shall utilize existing poles and conduits where reasonably possible. Subject to any applicable laws, rules or regulations, the City shall have the right, during the life of the franchise, to install and maintain at reasonable expense as determined by fair market value any wire and pole fixtures upon the poles owned by the grantee that do not unreasonably interfere with the cable system operations of the grantee. The City will provide insurance and indemnify grantee for such use of grantee's poles. The City shall cooperate with the grantee in arranging for such installation.

E. Franchise required.

(1) No cable system shall be allowed to occupy or use the streets of the City or be allowed to operate without a properly granted franchise awarded pursuant to the provisions of this ordinance.

(2) All persons operating cable television systems within the City shall be required to obtain a franchise for the construction, operation or maintenance of such system.

F. Term of franchise. The term of any franchise granted pursuant to this ordinance or extension of a franchise granted pursuant to the predecessor to this ordinance, Ordinance No. 215-76, shall be for no more than the maximum of 15 years from the effective date of the franchise, unless otherwise stated in the franchise agreement.

G. Acceptance of franchise.

(1) Following approval by the City, any franchise granted pursuant to this ordinance and the rights, privileges and authority granted thereunder shall take effect and be in force from and after the date on which the grantee accepts, signs and affixes its corporate seal (if appropriate) to the franchise agreement, provided that within 30 days immediately following such acceptance, the grantee shall file with the City its unconditional acceptance of the franchise in a form acceptable to the City, and promise to comply with and abide by all its provisions, terms and conditions to the full extent that said provision, term and conditions are legally applicable and enforceable.

(2) By accepting the franchise, and subject to applicable law, the grantee agrees to be bound by all the terms and conditions contained in this ordinance and said franchise except in the event of a conflict between this ordinance and said franchise, in which event the terms of the franchise shall control.

(3) By accepting the franchise, the grantee acknowledges that it does so relying upon its own investigation and understanding of the power and authority of the City in connection with the cable system and the franchise.

(4) By accepting the franchise, the grantee acknowledges that it has not been induced to enter into the franchise by any understanding or promise or other statement not expressed herein or therein, whether oral or written, concerning any term or condition of the franchise, regardless of whether such statement was made by or on behalf of the City.

(5) By accepting the franchise, the City acknowledges that it has not been induced to enter into the franchise by any understanding or promise or other statement not expressed herein or therein, whether oral or written, concerning any term or condition of the franchise, regardless of whether such statement was made by or on behalf of the grantee.

H. Franchise nonexclusive.

(1) Any cable franchise granted by the City shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable system or any component thereof, to any other person including itself, as it deems appropriate, subject to this ordinance and applicable state and federal law.

(2) The material terms and conditions of any cable franchises granted or renewed after the effective date of this ordinance shall be, when taken as a whole, no less burdensome or more beneficial than any other cable franchises granted or renewed subject to this ordinance, including but not limited to franchise fees, insurance, system build-out requirements, performance bonds or similar instruments, public, education and government access channels and support, customer service standards, required reports and related record keeping, and notice and opportunity to cure.

I. Selection of initial franchisee.

(1) In selecting a franchisee pursuant to this ordinance, the City will prepare a request for proposals to seek bids for a cable system to be established under a franchise by the City. This request for proposals will contain information and instructions relating to the preparation and filing of proposals; conditions regarding the installation, operation, and maintenance of a cable system; and the criteria to be used in evaluating applicant proposals. Any person desiring an initial franchise for a cable system shall file an application with the City. A nonrefundable application fee as may hereinafter be established by the City shall accompany the application, which shall not be considered or credited against the collection of applicable franchise fee. The provisions of this section will not be applicable to the renewal of any franchise.

(2) Applicants may be evaluated according to the following criteria:

(a) Installation plan. Consideration may be given to an installation plan that would provide the flexibility needed to adjust to new developments, maintenance practices, and services that would be available to the subscriber and the community immediately and in the future.

(b) Rate schedule. Consideration may be given to applicants with the most reasonable installation and subscriber rate schedule.

(c) Financial soundness and capability. The evidence of financial ability required in the applicant's proposal will be such as to assure the ability to complete the entire system within a maximum of three years from the date the franchise is granted. The City will also consider the applicant's ability to operate the cable system and provide the necessary services.

(d) Demonstrated experience in operating a cable system. Consideration may be given to evidence of the applicant's experience in operating a cable system, where such evidence would show or tend to show or confirm the ability of the applicant to furnish sufficient and dependable service to the potential public and private users.

(e) Technical capability. The City may consider the quality of service offered, including signal quality, response to customer complaints, and billing practices.

(f) Future needs. Consideration may be given to the franchisee's ability to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

(g) Additional considerations. The City may consider any additional information that it deems applicable.

J. Time is of the essence to this agreement. Whenever the franchise agreement shall set forth any time for an act to be performed by or on behalf of the grantee, such time shall be deemed of the essence, and any failure of the grantee to perform within the time allotted after due notice and a reasonable time to cure may be sufficient ground for the City to invoke the penalties and remedies set forth in this ordinance.

K. Law governs. In any controversy or dispute under this ordinance, the law of the state or federal law and/or regulations shall apply; where there is a choice of law, the laws of the Commonwealth of Pennsylvania shall be applied.

L. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction or by any federal, state or local statute or regulation, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions thereof.

M. Transfer of ownership or control.

(1) Transfer of franchise. For purposes of this Subsection M, the term "transfer" or "transferred" shall mean: the disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 51% or more at one time or cumulatively over the term of the franchise of the ownership or controlling interest in the cable system to a corporation, partnership, limited partnership, trust or association or person or group of persons acting in concert which is not under the same ultimate control as the grantee; provided, however, that any pledge, assignment or hypothecation of the cable system to a financial institution as security for debt shall not be considered a "transfer."

(2) Any franchise granted hereunder cannot in any event be transferred without the prior consent of the City, which consent shall not be unreasonably withheld. No such consent shall be required, however, for (a) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title or interest of the grantee in the cable system in order to secure indebtedness; or (b) a transfer to an entity owned and/or controlled by a parent corporation of grantee.

(3) The grantee shall promptly notify the City of any actual or proposed transfer and comply with applicable provisions of the Cable Act and rules of the FCC. This section shall not apply to a transfer to, acquisition by or merger into a wholly owned subsidiary or an affiliated entity wholly owned by the grantee and/or under the same ultimate control as the grantee.

(4) In accordance with applicable provisions of the Cable Act, for the purpose of determining whether it shall consent to such transfer, the City may inquire into the legal, financial, character and technical qualifications of the prospective controlling party, and the grantee shall assist the City in any such inquiry.

(5) Assumption of control. Upon default by the franchisee, a financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the cable system shall notify the City of its intent to have it or its designees take control of and operate the cable system. Said financial institution shall submit a plan for the operation of the cable system that will ensure continued service and compliance with all franchise obligations during the term that the financial institution exercises control over the cable system. The financial institution shall not exercise control over the cable system for a period exceeding one year without the approval of the City, which approval shall not be unreasonably withheld, and during said period of time the financial institution shall have the right to petition for transfer of the franchise to another grantee as though it were the original grantee. If the City finds that such transfer, after considering the legal, financial, character, and technical and other public interest qualifications of the applicant is satisfactory, the City shall transfer and assign the rights and obligations of such franchisee as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld.

(6) The City may require the grantee to furnish information to assist in the review of the proposed transfer of the franchise and will, consistent with the Cable Act and FCC rules, either approve or deny the transfer within 120 days after the date it receives notice of the transfer in writing from a grantee.

(7) The consent or approval of the City to any transfer of the grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the franchise.

(8) Any approval by the City of transfer of ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the franchise agreement, as provided in § A226-4G herein.

N. Franchise renewal.

(1) Renewal. Upon completion of the term of any franchise or extension granted under this ordinance, the City, subject to the Cable Act, FCC rules and other applicable law, may grant or deny renewal of the franchise of the grantee.

(2) Renewal procedures. The grantee's franchise shall be subject to renewal according to the terms, procedures and provisions set forth in the Cable Act, FCC rules and other applicable law.

O. Police powers.

(1) In accepting the franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such power.

(2) Any conflict between the provisions of this ordinance or the franchise and any other present or future lawful exercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to the grantee or cable systems which contains provisions inconsistent with this ordinance or the franchise agreement shall prevail only if upon such exercise the City finds that an emergency exists constituting a danger to health, safety, property or general welfare and such exercise is mandated by law.

P. Franchise fees.

(1) Because the City finds that the streets of the county, state and City to be used by the grantee in the operation of its cable system within the boundaries of the franchise area are valuable public properties acquired and maintained by the City at expense to its taxpayers; and the grant to the grantee of the use of said streets is a valuable right without which the grantee would be required to invest substantial capital in right-of-way costs and acquisitions; and the administration of any franchise issued pursuant to this ordinance imposes upon the City additional regulator responsibility and expense, a grantee of any franchise hereunder shall pay to the City an annual fee of 5% of the gross annual revenues; or the maximum amount permitted under applicable federal law if such maximum is greater than 5%; which gross annual revenues, for the purpose of calculating the franchise fee, shall include the amount of the franchise fee. This annual franchise payment shall be in addition to any other fee which is not defined as a franchise fee by the Cable Act and shall commence as of the effective date of the franchise. The City shall be furnished a statement certified by a financial representative of the grantee with each quarterly payment to the City. The statement shall include a line item for every source of revenue received and the amount of revenue received from each source for the period covered by the payment.

(2) In the event that it is determined by the federal or state government or any agency thereof or by any court of competent jurisdiction upon final adjudication that the City lacks the authority to impose the maximum franchise fee permitted by federal law or that the federal, state or local government or any agency thereof lacks jurisdiction to impose franchise fees, then the parties shall follow that determination or adjudication.

(3) Subject to the cable act, the franchise fee payment shall be in addition to any lawful tax or payment owed to the City by the grantee.

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

(5) Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, the grantee shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate in effect upon the due date.

(6) Quarterly payment. The franchise fee shall be paid quarterly to the City Clerk of the City of Pottsville, payable to the City of Pottsville. The grantee shall file a complete and accurate verified statement of all Gross Annual Revenue within the City during the period for which said quarterly payment is made, and said payment shall be made to the City not later than 45 days after the expiration of each calendar quarter. Quarters end on the last day in the months of March, June, September and December.

(7) Inspection. The City, upon reasonable notice, shall have the right to inspect the grantee's revenue records and the right to audit, limited to the previous three full calendar years and to recompute any amounts determined to be payable under this ordinance. The auditor shall be selected by the City, and the audit shall be conducted in conformance with generally accepted auditing procedures and generally accepted accounting principles. Up to $4,000 of the cost of an audit shall be at the expense of the grantee if it is found an amount greater than 105% of the original amount paid (i.e., a franchise fee payment of 5% or more) is due the City, but only to the extent of the amount due. In the event that grantee and the City do not agree that the amount represents an underpayment, upon the completion of any such audit by the City, the City shall provide to the franchisee a final report, which sets forth the City's findings in detail, including any and all substantiating documentation. The franchisee shall have 30 days from the receipt of the report to provide the City with a written response including any substantiating documentation. Any finally settled amount(s) due to the City as a result of such inspection shall be paid to the City by the franchisee within 30 days from receipt of written notice of the acceptance of such finally settled amount(s) from the City. For purposes of this § A226-4P(7), the term "finally settled amount(s)" shall mean the agreed upon underpayment, if any, to the franchising authority by the grantee as a result of any such audit. Provided, however, that any such audit shall take place within three years from the date the City receives such payment, after which period any such payment shall be considered final.

Q. Forfeiture or revocation.

(1) Grounds for revocation. The City reserves the right to revoke any franchise granted hereunder and to rescind all rights and privileges associated with the franchise after providing notice and a period for cure as provided for in § A226-4Q. Each of the following circumstances shall represent a default and breach under the ordinance and the franchise grant and shall be grounds for revocation of the franchise:

(a) If the grantee shall default in the performance of any of the material obligations under this ordinance or the franchise agreement entered into by and between the City and the grantee.

(b) If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein.

(c) If the grantee shall knowingly violate any orders or rulings of any regulatory body having jurisdiction over the grantee relative to the material provisions of this ordinance for the franchise, unless such rulings are subject to appeal, but only during such period of appeal, if and only if a supersede order is in effect.

(d) If the grantee evades any of the material provisions of this ordinance or the franchise agreement or practices any fraud upon the City or cable subscribers.

(e) If applicable, the grantee's construction schedule is delayed later than the schedule contained in the franchise agreement or beyond any extended date set by the City.

(f) If the grantee becomes insolvent, unable or unwilling to pay its debts or is adjudicated bankrupt.

(g) Failure to restore service after 96 consecutive hours of interrupted service throughout the entire service area, except when approval of such interruption is obtained from the City or such failure is the result of a force majeure and/or beyond the control of the grantee.

(h) Material misrepresentation of fact, as adjudicated by a court of competent jurisdiction in the application for or negotiation of the franchise or any extension or renewal thereof.

(i) Consistent with applicable law, if the grantee ceases to provide services for a period of 30 days as set forth in the agreement for any reason within the control of the grantee over the cable system.

(j) If the grantee shall fail to pay any taxes or assessments levied by the City of Pottsville within 60 days after the same are due and after the entry of a final, unappealable order of a court of competent jurisdiction upholding the validity of such taxes or assessments and their enforceability against the grantee.

(2) Effect of circumstances beyond control of the grantee. The grantee shall not be declared at fault or be subject to any sanction under any provision of this ordinance in any case in which performance of any such provision is prevented for reasons beyond the grantee's control.

(3) Pending litigation. Pending litigation or any appeal to any regulatory body or court having jurisdiction over the grantee shall not excuse the grantee from the performance of its obligations under this ordinance or the franchise agreement unless injunctive relief is obtained.

(4) Procedure prior to revocation.

(a) Prior to any revocation of a franchise, the City shall make written demand that the grantee comply with a specified requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the grantee continues for a period of 60 days following the receipt of such written demand, and the grantee has failed to provide a written explanation or to request additional time to cure any alleged default, the City shall place its request for termination of the franchise upon a regular Council meeting agenda. The City shall cause to be served upon the grantee at least seven days prior to the date of such Council meeting a written notice of this intent to request such termination and the time and place of the meeting, notice of which shall be published by the City Clerk at least once, seven days before such meeting, in a newspaper of general circulation within the City.

(b) The Council shall hear any persons interested therein and shall determine in its discretion whether or not any failure, refusal or neglect by the grantee was with just cause.

(c) If such failure, refusal or neglect by the grantee was with just cause, as reasonably determined by the City, then the City shall prepare a written finding in support of its determination and the Council shall direct the grantee to comply within a specified time and manner and upon such terms and conditions as are reasonable.

(d) if the Council shall determine that the grounds for revocation as set forth in Subsection Q(1) exist and were without just cause, then the Council shall, by resolution, declare that the franchise of the grantee shall be terminated unless there is compliance by the grantee within 90 days.

(5) Disposition of facilities. In the event that a franchise is not renewed or is revoked or otherwise terminated, the City may, in accordance with this ordinance and applicable law, order the removal of the cable system facilities required by public necessity from the City within a reasonable period of time as determined by the City.

(6) Restoration of property. In the event it is required to remove its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good a condition as that prevailing prior to the grantee's removal of its equipment and appliances without affecting the condition of the public ways and public places and cables, wires, attachments and poles after removal. Upon request, the grantee shall remove cable from City-owned conduit. The liability, indemnity, insurance and performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this section, this ordinance and the franchise agreement.

(7) Restoration by City; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection Q(6) above, or any other work required by City law or ordinance within such reasonable time as may be established and to a condition similar to that existing prior to the grantee's work, the City, following notice and an opportunity to cure, may cause such work to be done, and the grantee shall reimburse the City the cost thereof within 30 days after receipt of an itemized list of such costs or the City may recover such costs through the security fund provided by the grantee. The City shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

R. Receivership and foreclosure; termination by insolvency. Subject to applicable law, the failure of grantee to file a petition to discharge a bankruptcy petition within a period of 120 days shall constitute a material breach of the franchise and shall subject grantee to termination or lawful revocation of the franchise in accordance with the notice and opportunity to cure and other applicable sections of this ordinance.

S. Equal opportunity policy. Equal opportunity employment shall be afforded by all operators of cable television systems to all qualified and qualifiable persons, and no person shall be discriminated against in employment because of race, color, religion, age, national origin, sex or physical handicap. The grantee shall comply with all equal opportunity provisions lawfully enacted by federal, state and local authorities, as well as all such provisions contained in this ordinance and the franchise agreement.

T. Notices. All notices from the grantee to the City pursuant to this ordinance and the franchise agreement shall be to the City Administrator or his/her designee.

U. Failure of City to enforce this franchise is not a waiver of the terms thereof. The grantee shall not be excused from complying with any of the terms and conditions of this ordinance or the franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.

V. Rights reserved to the grantor.

(1) Right of inspection of records. The City shall have the right to inspect on a confidential basis those books, records, reports, maps, plans, financial statements and other like materials of the grantee as they relate to the cable system which are reasonably necessary in order to verify compliance with this ordinance and the franchise agreement, during normal business hours. The grantee shall make available such information as may be reasonably requested by the City.

(2) Right of inspection of construction. Upon 10 days' advance written notice the City shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to request that an appropriately certified engineering professional make such system-related tests as it shall find necessary to ensure compliance with the terms of this ordinance and other pertinent provisions of the federal law.

(3) Right of inspection of property. At all reasonable times, upon reasonable advance written notice, the grantee shall permit examination by any duly authorized and appropriately certified engineering professional representative of the City of the cable system, together with any appurtenant property of the grantee situated within the City, as may relate to the terms of this ordinance or the franchise granted pursuant hereto.

§ A226-5 Regulation of franchise.

A. Regulatory authority. The City shall exercise appropriate regulatory authority under the provisions of this ordinance and applicable law. This authority shall be vested in the City Council and administered through the City Administrator or his designee in order to provide day-to-day administration and enforcement of the provisions of this ordinance and any franchise granted hereunder and to carry out the City's responsibilities with regard to cable communications.

B. Supervision of the franchise.

(1) The City shall have the following regulatory responsibility.

(a) Administration and enforcement of the provisions of this ordinance and any franchise granted hereunder.

(b) Award, renewal, extension or termination of a franchise pursuant to the provisions of this ordinance, the franchise and other applicable law.

(c) Consent prior to sale or transfer of any franchise granted hereunder, which shall not be unreasonably withheld.

(d) Performance evaluation.

(e) Rate regulation, If applicable.

(2) The City also reserves the right to perform the following functions:

(a) Develop objectives and coordinate activities related to the operation of government channels, if applicable.

(b) Provide technical, programming and operational support to public agency users, such as City departments, schools and health care institutions, if applicable.

(c) Approve procedures and nontechnical standards for institutional operations and services, use of dedicated access channels and sharing of public facilities, if applicable.

(d) Analyze plans for expansion, interconnection and growth of cable services.

(e) Analyze the possibility of integrating cable communications with other City, state or regional telecommunications networks.

(f) Formulate and recommend long-range telecommunications policy for the City, and determine the future cable-related needs and interests of the community.

(g) Provide the administrative effort necessary for the conduct of performance evaluations and any other activities required for the administration of the franchise.

(h) Monitor the grantee's process for handling customer complaints and periodically inspect, upon reasonable advance written notice, and analyze the records related to such complaints in accordance with any franchise entered into.

(i) Receive applications for rate increases, if applicable, and provide staff assistance in the analysis and recommendations thereto.

(j) Monitor the grantee's adherence to operational standards, service requirements and line extension policies and advise the grantee, to writing, of any deficiency which may require cure under the franchise or this ordinance.

(k) Assure compliance with applicable laws and ordinances.

(l) Arrange for certified professional engineering tests and analysis of equipment and equipment performance as needed to ensure compliance with this ordinance and the franchise.

(m) Assure continuity in service.

(n) Receive for examination all data and reports required by this ordinance.

(o) Make Cable Television Advisory Committee appointments.

(3) Responsibilities of the Cable Television Advisory Committee. The responsibilities of the cable Television Advisory Committee, if such a committee is appointed by the City Council, shall include but not be limited to the following:

(a) Monitor and advise the City Council and City administration of the provisions of the City's Cable Television Ordinance and related documents.

(b) Serve as advisory body for the public access and educational access channels of cable television and any institutional networks that may be developed.

(c) Conduct performance evaluations in association with the City Council and the City administration.

(d) Advise the City government of objectives to be obtained in the City's cable system based upon its continued evaluation of the City's cable television franchise, cable technology and the future cable-related needs and interests of the community.

(e) Prepare an annual report to the Council.

(f) Cooperate with the City and the grantee in fulfilling its responsibilities herein.

C. Rates and charges.

(1) Subject to applicable law, the grantee shall establish rates that are nondiscriminatory within the same general class of subscribers in the franchise area for all services. Nothing contained herein shall prohibit the grantee from offering discounts to commercial and multiple-family dwelling subscribers billed on a bulk basis, promotional discounts, or reduced installation rates for subscribers who have multiple services.

(2) To the extent that the Cable Act, rules of the FCC, or other applicable law may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment or any other services provided by the grantee, the City shall have the right to exercise rate regulation to the full extent authorized or to refrain from exercising such regulation for any period of time at the sole discretion of the City. In such event, the City shall provide written notice to the grantee of its intent to do so, providing citation to the applicable provision of the law.

(3) The grantee shall have the authority and the right, in accordance with federal law, to itemize on its billing statements any federal, state or City taxes, franchise fees or charges, however designated, of the FCC or other governmental regulatory body, including copyright payments, directly imposed on subscribers or on the grantee.

(4) The grantee may, at its own discretion, waive, reduce or suspend connection fees for specific or indeterminate periods and/or the monthly service from time to time at its discretion.

D. Performance evaluation.

(1) The City and the grantee shall, at the option of the City, hold scheduled performance evaluation sessions once every year. All such evaluation sessions shall be open to the public. The City shall provide 20 business days' advance written notice to the grantee of its intent to conduct such an evaluation session, so that grantee has appropriate time to gather information. The City shall postpone the evaluation session for a reasonable amount of time in the event grantee provides a written request for an extension of time to gather information.

(2) All evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with public notice, as provided in accordance with applicable law. If possible, the grantee shall notify subscribers of all such evaluation sessions by announcement on a designated channel on the cable system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.

(3) Topics which may be discussed at any scheduled evaluation session may include but not be limited to cable system performance, the grantee compliance with this ordinance and the franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings and line extensions.

(4) During the review and evaluation by the City, the grantee shall fully cooperate with the City and shall provide information to the City relating to the topics outlined in Subsection D(3) as requested by the City.

E. Schedule of liquidated damages. For the violation of specified provisions of this ordinance and a franchise granted pursuant to it, the City Council shall act so as to notify the grantee, in writing, of the violation, and the grantee shall be allowed 60 days, or such other longer amount of time as the City may specify, to correct such violation. The City may impose such liquidated damages as may be agreed to by the City and the grantee, as set forth in the franchise agreement.

§ A226-6 Bonds, insurance and indemnification.

A. The City may require, as part of a franchise or franchise renewal, that a grantee provide or post a performance bond, insurance and proof of insurance and provisions for indemnification of the City, as shall be specifically set forth in any franchise agreement. Insurance coverages shall include general liability, automobile liability and workers' compensation.

B. Nonwaiver. Neither the provisions of this section, nor any bonds accepted by the City pursuant thereto, nor any damages recovered by the City thereunder will be construed to excuse unfaithful performance by the franchisee or limit the liability of the franchisee under this ordinance or the franchise for damages, either to the full amount of the bond or otherwise.

§ A226-7 Design and construction provisions applicable to any new build, upgrade or rebuild of cable system.

A. Authority to construct.

(1) Authorization to commence construction and application procedures. If necessary, within 30 days of the acceptance by the grantee of a franchise, the grantee shall register the cable system with the FCC and apply for contracts for use of poles. Within 30 days after completion of the make-ready survey identifying the routes of the cable system facility, the grantee shall apply for all additional licenses, if any, from the state, City or other necessary parties, such as the railroads for crossing over or under their property. In any event, all necessary applications for permits, licenses, certificates and authorizations shall be applied for in a timely fashion so that such filing and processing shall not interfere with or cause delay with the construction schedule as outlined in the franchise. Failure to make such timely application and timely filing, if any, shall constitute a substantial violation of this ordinance.

(2) Power to contract. Upon grant of the franchise and in order to construct, operate and maintain a cable system in the City, the grantee may enter into contracts with any public utility companies or any other owner or lessee of any poles or underground areas located within or without the City; obtain right-of-way permits from appropriate City, state, county and federal officials necessary to cross or otherwise use highways or roads under their respective jurisdictions; obtain permission from the Federal Aviation Administration to erect and maintain antennas; and obtain whatever other permits City, county, state or federal agencies may require.

B. Construction, operation, and maintenance standards.

(1) Compliance with construction, operation, and maintenance standards. The grantee shall construct, install, operate and maintain its cable system in a manner consistent with all laws, ordinances, construction standards, governmental requirements, and FCC technical standards. The cable system shall be designed, constructed, operated and maintained for twenty-four-hour-a-day continuous operation.

(2) Contractor qualifications. Any contractor proposed for work of construction, installation, operation, maintenance and repair of cable system equipment must be properly licensed under laws of the state and all lawful local ordinances.

(3) The grantee's cable system and associated equipment erected by the grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of said streets, alleys and other public ways and places. Except in cases of emergency or exigent circumstances, no pole or other fixtures placed in any public ways by the grantee shall be placed in such a manner as to interfere with normal travel on such public way.

(4) The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public rights-of-way, where necessary, the location shall be verified by excavation.

(5) Construction, installation, operation and maintenance of the cable system shall be performed in an orderly and workmanlike-manner, in accordance with the then-current technological and NESC standards. All cables and wires shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.

(6) The grantee shall at all times comply with, as applicable to the cable system and system facilities, the following:

(a) The National Electrical Safety Code (NESC).

(b) Applicable FCC or other federal, state and local regulations, and standards as set forth in the franchise agreement. Any conflicts between the referenced codes shall be resolved by reference to the NESC.

(7) In any event, the cable system shall not endanger or interfere with the safety of persons or property in the franchise area or other areas where the grantee may have equipment located.

(8) Any antenna structure used in the cable system shall comply with construction, marking and lighting of antenna structure standards as required by federal and state law or regulation.

(9) All worker facilities, conditions and procedures that are used during construction, installation, operation and maintenance of the cable system shall comply with the standards of the Occupational Safety and Health Administration.

(10) FCC rules and regulations shall govern regarding RF leakage.

C. System construction schedule. The franchise agreement shall specify any necessary construction schedule.

D. Service throughout City. Subject to the payment of such cable fees as billed, the grantee shall provide service to any residential dwelling units within the City and any additional areas annexed to the City, provided that such area has a density of residential dwelling units equal to 30 units per aerial mile of cable plant and 50 units per underground mile of cable plant. A grantee will extend service to new areas meeting this density and contiguous to existing cable plant within 90 days after a request from the City.

E. Use of streets.

(1) All installations shall be underground in those areas of the City where public utilities providing both telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, the grantee may install its service above ground, provided that at such time as those facilities are required to be placed underground by the City or are placed underground, the grantee shall likewise place its services underground without additional cost to the City but shall have the right to take such costs into effect when determining rates for cable services in its franchise area. Where not otherwise required to be placed underground by this ordinance or the franchise agreement, the grantee's cable system shall be located underground at the request of the adjacent property owner, provided that the excess cost over the aerial location shall be borne by the property owner making the request. All cable passing under the roadway shall be installed in conduit.

(2) Poor to construction or alteration which substantially modifies the existing structure of the cable system, however, the grantee shall in each case file plans with the appropriate City agencies as required by the current City Code provision, complete use agreements with the utility companies and obtain all necessary construction permits required by law or regulation.

(3) Interference with persons, improvement, public and private property and utilities. The grantee's cable system and facilities, including poles, lines, equipment and all appurtenances, shall be located, erected and maintained so that such facilities shall:

(a) Not endanger or interfere with the health, safety, or lives of persons.

(b) Not interfere with the free and proper use of public streets, alleys, bridges, easements or other public ways, places or property, except to the extent possible during actual construction, repair or operation.

(c) Not interfere with the rights and reasonable convenience of private property owners, except to the extent possible during actual construction, repair or operation.

(d) Consistent with applicable City Code provisions, not obstruct, hinder or interfere with any gas, electric, water or telephone facilities or other utilities located within the City.

(4) Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, landscaping or surface of any street or alley disturbed, in substantially the same condition and in a good workmanlike, timely manner to a condition comparable to that existing prior to such work. Weather permitting, such restoration shall be undertaken within no more than 30 days after the damage is incurred and shall be completed as soon as reasonably possible thereafter.

(5) Relocation of the facilities. In the event that at any time during the period of this ordinance the City, county or state shall lawfully elect to alter or change the grade of any street, alley or other public ways, the grantee, upon reasonable notice by the proper authority, shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

(6) Cooperation with building movers. The grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wire to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 15 working days' advance notice to arrange for such temporary wire changes.

(7) Tree trimming. The grantee shall have the authority, except when in conflict with existing City ordinances or City authorized regulations, to trim any trees upon and overhanging public rights-of-way so as to prevent the branches of such trees from coming in contact with cable system facilities.

(8) Easements. All necessary easements over and under private property shall be arranged for by the grantee.

F. Construction reporting requirements. Upon written request, within 120 days of the initiation of construction of the cable system, the grantee shall provide the City with a written progress report, detailing work completed to date. Such report shall include a description of the progress in applying for any necessary agreements, licenses or certifications and any other information the City Administrator may deem necessary.

G. Tests and performance monitoring (applicable for new and, where appropriate, existing systems).

(1) Upon written request by the City, not later than 90 days after any new or substantially rebuilt portion of the cable system is made available for service to subscriber, the grantee shall conduct technical performance tests to demonstrate full compliance with all technical standards contained in this ordinance and the franchise agreement and the technical standards and guidelines of the FCC.

(2) Such tests shall be performed and/or supervised by the cable system technical manager who shall have proper training and experience. Upon written request, a copy of the report shall be submitted to the City, describing test results, instrumentation, calibration and test procedures and the qualification of the engineer responsible for the tests.

(3) In accordance with FCC rules and regulations, cable system monitor test points shall be established at or near the output of the last amplifier in the longest feeder line at or near trunk line extremities within the franchise area. Such periodic tests shall be made at the test points as specified by the FCC. In the event that procedures are not specified by the FCC, the procedures specified by the FCC on the effective date of this franchise shall be utilized by the grantee.

(4) In addition to the performance test reports required herein, a copy of any performance test reports required by the FCC shall be submitted to the City upon written request within 60 days of completion.

(5) Whenever there has been a trend of similar, verified complaints made or when there exists other reliable evidence which, in the reasonable judgment of the City, casts doubt to the reliability or quality of the grantee's cable system, the City shall have the right and authority to compel the grantee to test, analyze and report on the performance of its cable system. Reports on such tests shall be delivered to the City no later than 14 days after the City formally makes a written request and notifies the grantee and shall include the following information: the nature of the complaints which precipitated the special tests; what cable system component was tested; the equipment used and procedures employed to said testing; the results of such tests; and methods by which said complaints were resolved. Said tests and analyses shall be performed and/or supervised by the cable system technical manager, who shall sign all records of the special tests and forward the same to the City with a report interpreting the results of the tests and recommending what actions should be taken by the City. All such tests shall be at the expense of the grantee.

(6) The City shall have the right to employ, at its expense, qualified professional consultants certified as professionals in their respective field(s) if necessary or desirable to assist in the administration of this or any other section of this ordinance or the franchise agreement.

§ A226-8 Design, service, and capabilities service provisions.

A. Design, services, and capabilities.

(1) The cable system. Every cable system shall pass by every single-family dwelling unit within the franchise area in accordance with Section § A226-7D of this ordinance. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in this ordinance unless otherwise specified in the franchise. The cable system shall be described in a franchise and will have the capacity to meet current and future needs in the City as determined by the City Council in accordance with the cable act, taking into consideration the reasonable cost of meeting the needs.

(2) Complimentary service. Each grantee shall provide complimentary service for the City as may be set forth in the franchise agreement.

(3) Use of franchisee's facilities. Subject to any applicable state or federal regulations, the City shall have the right to install and maintain, upon the poles and within the underground pipes and conduits of a franchisee, any wires and fixtures desired by the City for public purposes. The specific terms and conditions of such access shall be set out in the individual franchise agreement. Provided, however, that such use by grantor shall not interfere with the current or future use by franchisee or any preexisting user or lessor of franchisee's facilities; such use by grantor is restricted to noncommercial public purposes; grantor takes reasonable precautions to prevent use of franchisee's facilities in any manner that results in an inappropriate use thereof, or any loss or damage to the cable system. For the purposes of this subsection, "public purposes" includes, but is not limited to, the use of the structures and installations for City fire, police, traffic, utility, and/or signal systems, but not for commercial cable system purposes in competition with the franchisee; to the extent provided by state law, the City holds franchisee harmless against and from all claims, demands, costs, or liabilities of every kind and nature whatsoever arising out of such use of said poles or conduits; and at the franchisee's sole discretion, the City may be required either to pay a reasonable rental fee or otherwise reasonably compensate the franchisee for the use of such conduit or other equipment, provided, however, the franchisee agrees that such compensation or charge will not exceed those paid by it to public utilities.

(4) Closed captioning and descriptive audio service. Every franchisee will make audio descriptive services and closed captioning capabilities available to the extent required by state and federal law.

(5) Standby power. In accordance with FCC rules and regulations the franchisee shall provide standby power.

(6) HDTV conversion. Conversion to High Definition Television (HDTV) format shall occur in accordance with applicable law.

(7) Proof of performance testing. To ensure high quality of service on the access channels, results of proof of performance testing as required by applicable federal law throughout the system and on all required channels will be made available to the City upon request to the extent required by the franchise. Every franchisee will monitor the cable system to determine and ensure that the level of technical quality of the system's transmission of access channels is in conformance with the FCC rules and is the same as on other channels transmitted on the cable system.

B. Service to subscribers and users. Subject to applicable law and concurrently with the activation of the cable system in the City, the grantee shall provide all services to subscribers as described herein and in the franchise agreement.

(1) The cable system shall carry the broad categories of programming and services listed in the franchise agreement. Should the grantee desire to change the selection of programs or services offered on any of its tiers, it shall maintain the mix, quality and level of services provided over the cable system. Any such change in programs or services offered shall comply with the conditions and procedures contained in the franchise agreement and shall be reported to the City at least 30 days prior to the proposed implementation. The grantee shall use its best efforts to ensure diversity of programming.

(2) At its sole discretion, the City, in a franchise granted pursuant hereto, may request that the grantee provide and maintain public and/or governmental and/or municipal access channels. The number and type of access channels shall be specified in the franchise agreement.

(3) The public access channel(s) shall be a specifically designated channel available on a first-come-first-served, nondiscriminatory basis.

(4) The grantee shall fully provide, at a minimum, services, facilities and equipment for public, educational and government access as indicated in the franchise agreement, but shall have no further responsibility hereunder.

(5) The grantee shall have the right to utilize any of the required access channels for its own purposes to the extent such channels are not utilized for the cablecasting of access programming.

C. EAS, emergency alert system. Grantee shall comply with all applicable federal and state rules and regulations regarding broadcast and dissemination of emergency information.

D. Institutional network and institutional service. Every grantee shall, to the extent required in its franchise agreement and subject to applicable law, provide or, if an institutional network exists, fund on an equal basis with other cable providers, an institutional network that provides two-way broadband capabilities for noncommercial use by governmental or educational organizations designated by the City.

E. Customer service standards, service calls and compliance procedures.

(1) Cable system office hours and telephone availability.

(a) Every grantee shall maintain a local office within 10 miles of the franchise area. Such office shall be open during normal business hours. Every grantee also shall maintain a publicly listed toll-free or collect call telephone access line that is available to subscribers 24 hours a day, seven days a week. The local or toll-free numbers shall be listed, with appropriate explanations on subscribers' bills.

(b) Every grantee shall have trained representatives available to respond to subscriber telephone inquiries during normal business hours. The term "trained representatives" shall mean employees of the grantee who have the authority and capability while speaking with a subscriber to, among other things, answer billing questions. adjust bills, and schedule service and installation calls.

(c) After normal business hours, the telephone access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained representative on the next business day.

(d) Upon reasonable prior written request, a grantee shall prepare and distribute to the grantor a calendar of holidays and business days on which the operator will be closed.

(e) Under normal operating conditions, telephone answer time by a customer service representative or automated response unit, including wait time, shall not exceed 30 seconds. If a call must be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less then 90% of the time as measured on a semiannual basis under normal operating conditions.

(f) Under normal operating conditions, subscribers will receive a busy signal less than 3% of the time.

(g) The period of three hours following major outages (more than 25% of the subscribers) or periods of natural disasters are not included in the response requirements above, provided that grantee has used reasonable best efforts to provide voice-mail information about the outage on phone answering equipment and the system bulletin board (assuming outage is not City-wide)

(h) Grantee shall respond to all subscriber or user inquiries or complaints within 10 business days of the inquiry or complaint, except to the extent a more stringent standard is set forth for specific types of activities, inquiries or complaints herein or in the franchise agreement.

(i) On a semiannual basis, the grantee upon written request will provide the grantor with reports for hold time, busy signals, and abandonment rate and if requested by the grantor, the grantee will meet with the grantor to review such reports. The grantor may allow periods of excused noncompliance if the grantee can provide reasonable documentation that these periods of noncompliance were not within normal operating conditions.

[1] The grantee will be deemed in compliance if:

[a] During any such semiannual period each criterion has been met or exceeded; or

[b] If each criterion has been met or exceeded during four months within any such semiannual period.

[2] Should the grantee be found to be in noncompliance, the grantor shall notify the grantee in writing and specify the basis for the finding. Upon notification, the grantee shall have 30 days to cure such noncompliance.

[3] If the grantee, based upon the available monthly data, fails to cure the noncompliance within the thirty-day period, the grantor may commence enforcement procedures.

(2) Installation, outages, and service calls. Under normal operating conditions, each of the following standards must be met no less than 95% of the time as measured on a quarterly basis:

(a) To the extent practical, at the time an appointment is scheduled, in accordance with applicable FCC rules and regulations, the grantee shall inform the subscriber of service procedures, required payments, possible delays, phone or field verification procedures which are related to the appointment and/or possible rescheduling/cancellation.

(b) The appointment window alternatives for standard installations and service calls will be within a maximum four-hour time block during normal business hours. Grantees may schedule service calls and other installation activities outside of normal business hours for the express convenience of a subscriber, if so requested.

(c) No grantee may cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.

(d) If a grantee's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, all reasonable efforts will be made to contact the subscriber. The appointment must be rescheduled, as necessary, at a time that is convenient for the subscriber.

(e) The grantee may phone the subscriber within the appointment window to verify that the appointment is still needed. If the subscriber telephone is answered by a machine or service, the grantee must leave a message which includes a number the subscriber may use to call back to confirm or reschedule the appointment.

(f) Upon arrival at the subscriber's address, if the grantee verifies that a subscriber is not at the address during the scheduled appointment window, the grantee shall leave a door tag or similar notice with the name of the person leaving the notice, the time the person determined that the subscriber was not at home, and a telephone number the subscriber may call back to confirm or reschedule an appointment.

(g) Grantee shall require that any vehicle used for the installation, construction, maintenance, or repair of a cable system shall bear the identification of the contractor or the applicable grantee in a conspicuous place and manner.

(h) Reconnections due to erroneous disconnection based on billing or technical errors must be completed at no charge within 24 hours of notification by the affected subscriber.

(i) Reconnections after a disconnection attributed to nonpayment of bills must be completed within seven business days of grantee receipt of back payment, provided that any bank draft received for such payment has been processed and cleared through banking channels.

(j) A subscriber's preference as to the point of entry into a residence shall be observed whenever feasible. Runs in building interiors shall be as unobtrusive as reasonably possible and outlets shall be located for the convenience of the subscriber. The grantee shall use due care in the process of installation and shall repair any damage caused by grantee to the subscriber's property caused by installation work performed by grantee. Such restoration shall be undertaken as soon as possible after the damage is incurred, shall be subject to reasonable subscriber approval of the corrective action, and grantee shall use its best efforts to complete the corrective action within no more than 30 days after the damage is incurred. Should such restoration not be corrected within 30 days, the grantee shall notify the subscriber as to the cause for the delay and the date when such action shall be completed.

(3) Repairs and interruptions.

(a) Every grantee will begin working on service interruptions and outages within a reasonable timeframe but in no event later than 24 hours after the service interruption becomes known.

[1] Any reports of no picture/no sound must be responded to within 24 hours of such report.

[2] Work not requiring the grantee to enter subscriber premises (or property) shall not require the subscriber to be available for an appointment and shall not be delayed on account of the grantee's inability to arrange an appointment with the subscriber.

(b) Work on all other requests for service must begin by the next business day after notification of the problem and must ordinarily be completed within 72 hours of the initial request. If for reasons beyond the grantee's control a longer time for the completion of such repairs is necessitated, the grantee shall exercise all due diligence to complete the work in the shortest period of time possible.

(c) Outside repairs to cable plant that cannot be made by the initial service technician dispatched shall be rescheduled within 24 hours of the originally scheduled service call. The subscriber does not need to be home for outside plant and line repairs.

(d) A grantee may interrupt service only for good cause and for the shortest time possible, including interruption for system upgrade, maintenance and repair. Routine maintenance shall occur at times that affect the fewest number of subscribers. The grantee shall post override notices on the system to advise subscribers in advance of planned service interruptions. To the extent that specific neighborhoods will be affected by a planned outage, such as during an upgrade, the grantee shall provide advance notice through telephone calls and/or door hangers.

(e) upon written or credible oral request, a grantee shall provide a pro rata credit for service for each service interruption exceeding four hours in any twenty-four-hour period, unless it is demonstrated that the subscriber caused the outage, or the outage was planned as part of an upgrade or other work of which the City and the subscriber received appropriate prior notification or the service interruption was determined to be beyond the control of grantee. These credits and refunds shall be made available upon request by subscriber.

(f) A service interruption shall be as defined in FCC regulations: the loss of picture or sound on one or more cable channels.

(g) Within one hour of an identified outage, service technicians will respond and use all available reasonable means to correct the outage in accordance with FCC regulations.

(4) Communications between grantees and subscribers.

(a) Notifications to subscribers:

[1] In accordance with applicable law, every grantee shall provide written information to subscribers on each of the following topics at the time of installation, at least annually to all subscribers, at any time upon request, and at least 30 days prior to making significant changes in such information:

[a] Products and services offered;

[b] Prices and options for programming services and conditions of subscription to programming and other services and facilities.

[c] Installation and maintenance policies including, when applicable, information regarding the subscriber's home wiring rights and information describing ownership of internal wiring during the period service is provided;

[d] Instructions on how to use services;

[e] Channel positions of programming offered on a system;

[f] Billing and complaint procedures, including the name, address and telephone number of the City;

[g] The availability of converters, lockout devices or other signal control devices;

[h] The address and telephone number of the grantee's office to which complaints may be reported and, when applicable, the grantee's community unit identifier as specified by the FCC.

[2] Subscribers will be given 30 days advance notice of any changes in rates, programming services, or channel positions through any written means that are reasonably likely to bring such information to the attention of subscribers.

(b) Billing.

[1] Bills must be clear, concise, and understandable. Bills must be itemized, with itemizations including, but not limited to, applicable service tier charges and equipment charges.

[2] Bills must clearly show a specific payment due date.

[3] If a grantee chooses to itemize, as a separate line item on bills, franchise area or other government-imposed fees attributable to the total bill, such fees must be shown in accordance with any applicable law concerning the grantee's ability to itemize such fees.

[4] Bills must also clearly delineate all activity during the billing period, including optional charges, rebates, and credits. Nothing in this section prohibits or restricts a grantee from offering packages of programming to subscribers and to identify such packages on the subscriber bill.

[5] The billing statement must clearly and conspicuously indicate the past due date, and if applicable the date certain that a subscriber's service will be disconnected and a telephone number for the subscriber to call to make payment arrangements or otherwise resolve a billing dispute.

[6] Negative option billing is prohibited unless applicable federal law specifically requires that the grantee be permitted to engage in such practice.

[7] In case of a billing dispute, a grantee must respond to a written complaint addressed to grantee's local office from a subscriber within 30 days. Credits for service shall be issued no later than the subscriber's next billing cycle after determination that the credit is warranted.

(c) Late payment for cable service. No processing fees for late payment, however denominated, shall be added to a subscriber's bill less than 30 calendar days after the date of the bill by the subscriber. All such charges shall be separately stated on the subscriber's bill.

(d) Rebate for service failure. Upon written or credible oral request, grantee shall provide a service refund in its billings subsequent to system or signal outage resulting in signal and service failure to a subscriber for 48 hours or more. The refund shall be in proportion to the normal monthly charge for a subscriber.

(5) Complaint log. Subject to the privacy provisions of 47 U.S.C. § 521 et seq., grantor and every grantee shall prepare and maintain written records of all complaints or trouble calls made to them and the resolution of such complaints, including the date of such resolution. Such written records shall be on file at the office of each grantee. Every grantee shall make available to grantor a written summary of such complaints and their resolution upon written request.

(6) Lockout device. Every grantee shall provide to any subscriber upon request for sale or lease a lockout device for blocking both video and audio portions of any channel(s) of programming entering the subscriber's premises.

(7) Periodic subscriber survey.

(a) Upon 60 days' advance written notice, every grantee shall allow grantor to insert into grantee's monthly subscriber billing statements a written survey on an annual basis. The grantor shall be responsible for any costs incurred by a grantee that are related to the conduct of such surveys.

(b) The grantor may periodically elect to supplement such annual subscriber surveys with a statistically-valid telephone survey.

(8) Line extension policy. No resident shall be refused service arbitrarily. Unless otherwise set forth in the franchise agreement, whenever a grantee receives a request for cable service in an unserved portion of the franchise area where there are at least 30 dwelling units (which shall be interpreted to include businesses that have contractually agreed to subscribe to cable service) within one linear cable mile of the grantee's nearest trunk or distribution cable from which it is technically feasible to extend service, or the dwelling unit is within 125 feet of grantee's distribution cable, it shall extend its cable system to such subscriber at no cost, other than the published standard installation fee charged to all subscribers.

(9) Grantee shall comply with applicable provisions of the Americans with Disabilities Act regarding provision of service to physically challenged customers.

(10) Dispute resolution. Every grantee shall establish procedures for receiving, acting upon, and resolving customer complaints, and crediting customer accounts, without intervention by the grantor. Such procedures shall be as set forth in the franchise agreement.

F. Protection of subscriber privacy.

(1) Protection of subscriber privacy mandatory. The grantee shall at all times protect the privacy of subscribers, as provided in this ordinance and consistent with other applicable federal, state and local laws.

(2) Notice of privacy provisions. At the time of entering into an agreement to provide cable service or other service to a subscriber and at least once a year thereafter, the grantee shall provide notice in the form of a separate written statement to the subscriber which clearly and conspicuously informs the subscriber of the privacy rights of the subscriber and the limitations placed upon the grantee in accordance with applicable federal subscriber privacy provisions.

(3) All provisions of this section are subject to the provisions of P.L. 107-56 (October 26. 2001) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, known as the "USA PATRIOT ACT."

(4) Disclosure of subscriber information prohibited. Unless the grantee has granted the subscriber the opportunity to limit or prohibit such disclosure in accordance with the Cable Act, the grantee shall not sell or otherwise make available to any party any list of the names and addresses of individual subscribers, any list which identifies the viewing habits of individual subscribers or any personal data, social security number, income and other data the company may have on file about individual subscribers, except as necessary to render or conduct a legitimate business activity related to a cable service or other service provided by the grantee to the subscriber; provided, however, that such disclosure shall not reveal, directly or indirectly, the extent of viewing or other use by the subscriber of a cable service or other service provided by the grantee or the nature of any transaction made by the subscriber over the cable system.

(5) The grantee shall not predicate regular subscriber service on the subscriber's grant or denial of permission to collect. maintain or disclose personally identifiable information unless such information is necessary for credit check or billing purposes. A subscriber may at any time revoke any permission given by delivering to the grantee a written statement of that intent.

(6) Each subscriber shall be provided access to all personally identifiable information regarding such subscriber that the grantee collects or maintains or allows to be collected or maintained, and such subscriber shall be provided the opportunity to correct any error in such information.

(7) This section is not intended to prohibit the use or transmission of signals useful only for the control or measurement of cable system performance or signal theft.

G. Rights of individuals.

(1) Nondiscrimination required. The grantee shall comply with all applicable federal and state statutes dealing with nondiscrimination.

(2) Subscriber contracts. The subscriber should receive a complete copy of any form provided by the grantee that is signed by the subscriber at the time of signing.

H. Reporting requirements. Each grantee shall submit a written report to the City with respect to the preceeding calendar year containing the following information at the following time intervals:

(1) Quarterly reports. Within 30 days after the close of each calendar quarter, the grantee shall submit a quarterly report to the grantor that includes:

(a) A numerical summary of repair requests by fix codes covering the previous quarter;

(b) A numerical report on the number of total service outages with a duration of three or more hours during the previous quarter; and

(c) A numerical summary of customer service standards, including telephone answer time, busy signal time, outage response and installation response for the previous quarter.

(2) Annual reports. Within 60 days of the close of each calendar year, the grantee shall submit a report to the grantor that includes:

(a) Customer service and operational information.

[1] A system overview that summarizes the previous year's activities, including major system events, channel and price changes, community programming, subscriber totals and physical miles of plant construction and plant in operation during the previous year.

[2] A current price list and channel line-up.

[3] Copies of all required notices sent to subscribers, including subscriber privacy, availability of signals, equipment compatibility and service complaints and procedures.

[4] A year-end summary of repair requests, outages and customer service standards.

[5] A projection of significant plans or changes for the coming year.

(b) Financial and ownership information.

[1] An ownership report indicating the legal entity that holds the franchise.

[2] An annual, internally audited and certified report showing subscriber revenue from each category of service and every source of nonsubscriber revenue.

[3] An annual statement of capital expenditures within the franchise area, including the cost of construction and equipment.

[4] A list of members of the parent corporation board of directors and local management team.

[5] The grantee shall also submit a copy of the corporate annual report to the grantor as soon as it is available.

§ A226-9 Books, records and reports.

A. Notwithstanding anything to the contrary set forth in this section, the grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The franchising authority agrees to treat any information disclosed by the grantee as confidential and only to disclose it to employees, representatives, and agents of the franchising authority that have a need to know, or in order to enforce this franchise agreement and who agree to maintain the confidentiality of all such information. The grantee shall not be required to provide subscriber information in violation of Section 631 of the Cable Act. For purposes of this section, the terms "proprietary" or "confidential" include, but are not limited to, information relating to the cable system design, customer lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the grantee to be competitively sensitive.

B. The grantee shall permit any duly authorized representative of the City to examine and copy all maps and other records kept or maintained by the grantee or under its control concerning the operations, affairs, transactions or property of the grantee in accordance with § A226-9A(1). If any of such maps or records are not kept in the City or upon reasonable request are not made available in the City and if the City shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance and expenses necessarily incurred in making such examination shall be paid by the grantee.

C. In accordance with applicable law, if the City is granted the authority to regulate the grantee's rates and charges or if the grantee is seeking to renew its franchise agreement, then the City shall have the additional right to inspect, upon reasonable notice, during normal business hours, the grantee's books, records and financial information reasonably necessary to verify, support or challenge the grantee's rates and charges or the grantee's financial ability to provide the services, facilities and equipment as set forth in the grantee's proposal for renewal. All information, data and material inspected, reviewed or learned pursuant to this inspection right shall be strictly confidential, if so marked or identified by grantee.

§ A226-10 Miscellaneous provisions.

A. Captions. The captions to sections throughout this ordinance are intended solely to facilitate reading and reference to the sections and provisions of this ordinance. Such captions shall not affect the meaning or interpretation of this ordinance.

B. Franchise applications. Applicants for a franchise shall submit to the City written applications utilizing the standard format provided by the City, at the time and place designated by the City for accepting applications and including the designated application fee.

C. Applicable law. This ordinance is subject to applicable federal and state law, including the cable act.

D. Force majeure. If, by reason of force majeure, either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure," as used herein, shall mean the following: acts of God: acts of public enemies; orders of any kind of the government of the United States of America or of the Commonwealth of Pennsylvania or any of their departments, agencies, political subdivisions or any civil or military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions.

E. Franchise. Whenever any provision in any franchise issued pursuant to the provisions of this ordinance conflicts with the language hereof, the provision set forth in the franchise agreement shall control.

F. Retention of rights. Nothing contained herein shall be construed as nor be deemed to be a waiver by the grantee of any statutory, constitutional or other legal rights of the grantee, and the grantee may exercise whatever remedies or rights it may have or may at any time or in any manner subsequently acquire under applicable law.

G. "Reasonable notice" shall be as defined in the franchise agreement.

H. In addition, if the City or any instrumentality of the City directly or indirectly operates a system which competes with the grantee during the term or renewal terms of the franchise, then the grantee shall not be deemed to have waived but shall be considered to have specifically reserved all of its rights regarding modification of all regulatory terms and conditions of both this ordinance and the franchise issued pursuant hereto which have or may have the effect of granting the City a competitive advantage over the grantee, including but not limited to those terms and conditions granting the City the ability to regulate the grantee's rates, to regulate pricing differentials and/or to impose fees and assessments upon the grantee, to impose and/or enforce consumer protection standards and to inspect the grantee's books and records, as well as any other terms and conditions of like import and effect.