[Adopted 5-4-1998 by Ord. No. 98-3]
This article shall be known and may be cited as the "Warwick Cable Communication Regulatory Ordinance," and it shall become a part of the ordinances of the Township.
For the purpose of this article the following terms, phrases, words and their derivations shall have the meaning given herein. 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 be given their common and ordinary meaning.
BASIC SUBSCRIBER TELEVISION SERVICES A separately available basic service tier to which subscription is required for access to any other tier of service. Such basic service tier shall, at a minimum, consist of the following: all signals carried in fulfillment of Cable Act, Sections 614 and 615; any public, educational, and governmental access programming required in this article or the franchise; any signal of any television broadcast station that is provided by the cable operator to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station. Additional signals may be added to the basic tier by the grantee.
CABLECAST SIGNAL A nonbroadcast signal that originates within the facilities of the cable communications system.
CABLE COMMUNICATIONS SYSTEM (also referred to as "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:
A. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
B. A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public rights-of-way;
C. A facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
D. Any facilities of any electric utility used solely for operating its electric utility systems.
CHANNEL A six-megahertz (MHZ) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. One channel of high definition television will utilize more than six MHZ.
CLOSED-CIRCUIT OR INSTITUTIONAL SERVICE Such noncommercial video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions.
COMMERCIAL SUBSCRIBER A subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession.
COMMUNICATIONS ACT or CABLE ACT The Communications Act of 1934; the Cable Communications Policy Act of 1984; the Cable Television Consumer Protection and Competition Act of 1992; and the Telecommunications Act of 1996, as they may be amended or succeeded from time to time.
COMPLAINT A verbal or written indication from a subscriber within the Township of a problem that generates a work order by the grantee or complaint to the Township that is communicated to the grantee with any aspect of cable service.
CONVERTER An electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control.
DEDICATED INSTITUTIONAL ACCESS CHANNELS Cable communications channels dedicated to noncommercial use by the Township, county, commonwealth or federal governmental agencies, and public and nonprofit, private educational institutions.
DISCRETE CHANNEL A channel which can only be received by the person and/or institution intended to receive signals on such channel.
DROP A coaxial connection from feeder cable to the subscriber/user television set, radio or other terminal.
FAIR MARKET VALUE The price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time.
FCC The Federal Communications Commission and any legally appointed successor.
FRANCHISE The nonexclusive rights granted by separate agreement pursuant to this article to construct, operate and maintain a cable communications system along the public ways within all or a specified area in the Township. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the Township as required by other ordinances and laws of the Township.
FRANCHISE AREA The entire Township, or portions thereof, for which a franchise is granted under the authority of this article. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the Township, including all territory thereafter annexed to the Township.
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 Township, and its lawful successor, transferee or assignee.
FRANCHISE FEE The percentage, as specified by the Township, of the franchisee's gross revenues from the operation of the cable system in exchange for the rights granted pursuant to this article and the franchise agreement.
GRANTOR The Township of Warwick as represented by the Township Board of Supervisors acting within the scope of its jurisdiction.
GROSS REVENUES All revenue derived directly or indirectly by the grantee from the operation of the cable communications system within the Township. Revenues derived from the operation of the cable system received by any affiliate, subsidiary or any person in which the grantee has a financial interest shall be included in the grantee's gross revenues in any case where those revenues were derived by the affiliate, subsidiary or person in which the grantee has a financial interest to avoid or reduce the grantee's franchise fee obligation.
INSTALLATION The connection of the system from feeder cable to subscribers' terminals.
MONITORING Observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever.
NARROWCASTING The ability to distribute cable programming to a particular segment or segments of the cable subscribers.
NONCOMMERCIAL Access channel use in a manner similar to public broadcasting service station programming and underwriting acknowledgments.
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 cable as measured on the street or easement from pole to pole or pedestal to pedestal.
PUBLIC ACCESS CHANNEL Any channel designated or dedicated for noncommercial use by the general public or noncommercial organizations which is made available for use without charge on a nondiscriminatory basis in accordance with the rules and regulations specified in the franchise.
PUBLIC WAY or PUBLIC RIGHTS-OF-WAY The surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkways, utility easements or other public right-of-way now or hereafter held by the Township which shall entitle the Township and the grantee to the use thereof for the purpose of installing and maintaining the grantee's cable television system. No reference herein, or in any franchise, to the "public way" shall be deemed to be a representation or guarantee by the Township that its title to any property is sufficient to permit its use for such purpose, and the grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the Township as the Township may have the undisputed right and power to give.
REASONABLE NOTICE Written notice addressed to the grantee at its principal office within the Township or such other office as the grantee has designated to the Township as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than 10 calendar days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said 10 calendar days, holidays recognized by the Township shall be excluded.
RESIDENT Any person residing in the Township 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.
SALE Includes any sale, exchange, barter or offer for sale.
SCHOOL Any public or nonprofit, private educational institution including primary and secondary schools, colleges and universities.
SERVICE AREA The entire geographic area within the franchise territory.
SYSTEM FACILITIES or FACILITIES The cable communications system constructed for use within the Township including, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the Township designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual, radio, television and electronic signals to and from subscribers in the Township and any other equipment or facilities located within the corporate limits of the Township intended for the use of the system; provided, however, such system facility excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other system facilities located outside the Township limits.
TRANSFER The disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 25% or more at one time of the ownership or controlling interest in the system, or 30% cumulatively over the term of the franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert unless otherwise exempted herein.
TRUNK LINE The major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers.
UPSTREAM SIGNAL A signal originating from a terminal to the cable system headend including video, audio or digital signals for either programs or other uses such as security alert services, etc.
USER A person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity.
The franchise area shall be the entire Township, or portions thereof, for which a franchise is granted.
For the purpose of operating and maintaining a cable communications system in the Township, 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 Township such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable communications systems, provided, however, that the grantee complies with all design, construction, safety, and performance provisions contained in this article, the franchise agreement, and other applicable local ordinances.
In the event that a grantee chooses to utilize Township-owned conduit or other facilities for any portion of its cable communications system, the consideration for the use of Township conduit or other facilities shall be at charges to be agreed upon between the parties.
No poles or pedestals shall be erected by the grantee without prior approval of the Township with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the grantee shall be a vested right and such poles shall be removed or modified by the grantee at its own expense whenever the Township determines that the public convenience would be enhanced thereby. The grantee shall utilize existing poles and conduits, where possible. The Township shall have the right, during the life of the franchise, to install and maintain upon the poles owned by the grantee, any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the grantee. The Township shall reimburse the grantee for any make-ready costs. The use of the grantee's poles shall be at a fair and reasonable rate.
No cable communications system shall be allowed to occupy or use the streets of the Township or be allowed to operate without a franchise.
The term of any franchise granted pursuant to this article shall be stated in the franchise.
Any franchise granted pursuant to this article shall be nonexclusive. The Township specifically reserves the right to grant at any time such additional franchises for a cable communication system as it deems appropriate, and/or build, operate, and own such cable communication system or systems as it deems appropriate. Subject to applicable law and regulation, any additional cable communications system franchises granted by the Township shall, to the extent practicable, seek to create a level regulatory playing field and shall contain similar terms and conditions, including, without limitation, provisions of public benefit with similar cost, taking into account the size and population of the franchised areas. A grantee is required to indemnify the Township and to hold the Township harmless from all claims against it by third parties arising out of its compliance with this provision to the extent that such claims are not barred by Section 635A of the Cable Television Consumer Protection and Competition Act of 1992 (Limitation of Franchise Authority Liability), or by any other provision of law.
Whenever the agreement shall set forth any time for an act to be performed by or on behalf of the grantee or the Township, such time shall be deemed of the essence and any failure of the grantee or the Township to perform within the time allotted shall be sufficient ground for the other party to invoke an appropriate penalty including possible revocation of the franchise, subject to force majeure.
In any controversy or dispute under this article, the law of the Commonwealth of Pennsylvania shall apply.
Upon completion of the term of any franchise granted under this article, the Township may grant or deny renewal of the franchise of the grantee in accordance with the provisions of the Cable Act. The grantee shall own the cable communication system, but shall have no property right in the public rights of way upon the completion of the franchise term including any renewals and extensions thereof.
Equal opportunity employment shall be afforded by all operators of cable television systems to all qualified 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 enacted by federal, commonwealth and local authorities, as well as all such provisions contained in this article and the franchise.
All notices from grantee to the Township pursuant to this article and the franchise shall be to the Township Manager or his/her designee. The grantee shall maintain with the Township, throughout the term of the franchise, an address for service of notices by mail. The grantee shall also maintain a locally accessible office as specified in this article and the franchise, and telephone number for the conduct of matters related to the franchise during normal business hours. The grantee shall be required to advise the Township of such address(es) and telephone numbers and any changes thereof.
The grantee shall not be excused from complying with any of the terms and conditions of this article or the franchise by any failure of the Township upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.
Any person, firm, corporation or utility which permits the violation of this article shall, upon being found liable in a civil enforcement proceeding commenced by the Township, pay a fine of $600 plus all court costs, including reasonable attorneys' fees incurred by the Township. A separate offense shall arise for each day or portion thereof in which a violation is found to exist or for each section of the article which is found to have been violated. In addition to civil actions before a District Justice, the Township may enforce this article in an action in equity brought in the Bucks County Court of Common Pleas.
The franchise shall specify the construction schedule.
The grantee shall provide service to all dwelling units or commercial entities requesting service and in any additional areas annexed to the Township within six months of such request, subject to any line extension requirements specified in the franchise agreement.
No poles shall be erected by the grantee without prior approval of the Township with regard to location, height, types and any other pertinent aspect and consideration given by the Township to the availability of existing poles and local aesthetics. However, no location of any pole or wire-holding structure of the grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the Township determines that the public convenience would be enhanced thereby.
The grantee shall file with the Township:
A. Regulatory communications. Upon request from the Township, any reports required by the Federal Communications Commission (FCC), including but not limited to any annual proof of performance tests and results, equal employment opportunity (EEO) reports, required financial information, and all petitions, applications and communications of all types submitted by the grantee to the FCC, the Security and Exchange Commission (SEC), or any other federal or commonwealth regulatory commission or agency having jurisdiction over any matter affecting operation of the grantee's system, will be made available to the Township.
B. Facilities report. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the Township. After completion of initial construction or any rebuild, maps designating the location of the cable plant shall be filed with the Township. Thereafter, any revisions to the system shall be reflected in updated maps provided to the Township in a timely manner after such changes are made.
C. Construction reports. During the progress of any initial, rebuild, or other major construction undertaken during the term of the franchise, reports shall be sent to the Township on a bimonthly basis until construction is complete, as specified in this franchise.
D. Proof of performance tests. Proof of performance test results shall be supplied to the Township when sections of the system are rebuilt and annually as required in §
60-39B and
E of this article.
E. Test required by Township. Technical tests required by the Township as specified in §
60-39E of this article and the franchise shall be submitted within 30 days of notification.
F. Change in service. Written notification of any change in programming or service shall be provided to the Township 30 days prior to implementation, and, when practicable, prior notice shall be given 45 days in advance.
G. Grantee rules. The grantee's schedule of charges, contract or application forms of regular subscriber service policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the grantee's policy in connection with its subscribers shall be filed with the Township and conspicuously posted in the grantee's local office. All such terms and conditions, including schedule of charges, must have been filed with the Township prior to their becoming effective. Such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable commonwealth and federal laws, rules or regulations.
H. Proof of bonds and insurance. The grantee shall submit to the Township the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this article, or certified copies thereof, and written notice of payment of required premium.
I. Financial and ownership reports. The following financial reports for the franchise area shall be submitted to the Township as provided for below:
(1) An annual ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the franchise of 5% or more to be provided where any changes in ownership have occurred from those previously reported.
(2) A fully audited and certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of nonsubscriber revenue, line item operating expenses, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule to be provided every three years, if requested. The fully-audited and certified information will be provided on a Township basis for gross revenue. Required financial information may be provided on a consolidated basis for expenses, depreciation, and sources and applications of funds.
(3) A current annual statement of all capital expenditures including the cost of construction and of equipment to be provided every three years, if requested. Such information may be provided on a consolidated basis where franchisee specific information is not available.
(4) An annual list of any changes to the officers and members of the Board of the grantee and of any parent corporation.
(5) An annual report of the grantee and any parent corporation.
J. Operational reports. The following system and operational reports shall be submitted to the Township upon written request by the Township Manager or his designee:
(1) A report on the system's technical tests and measurements as set forth herein and in the franchise.
(2) A report on programs and services offered by the grantee, including public, educational, government, and leased access.
(3) An annual summary of the previous year's activities including, but not limited to, subscriber totals for each category of service offered including number of pay units sold, new services offered, and the amount collected annually from other users of the system and the character and extent of the service rendered thereto.
(4) An annual summary of complaints received and handled in addition to any reports required in the franchise.
(5) An annual projection of system and service plans for the future.
K. Additional reports. The grantee shall prepare and furnish to the Township at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the Township in connection with this article or the franchise, upon written request of the Township Manager or his designee.
The captions to sections throughout this article are intended solely to facilitate reading and reference to the sections and provisions of this article. Such captions shall not affect the meaning or interpretation of this article.
Unless otherwise indicated, when the performance of or doing of any act, duty matter, payment, or thing is required hereunder and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of duration time. When the last day of the period falls on a Saturday, Sunday, or legal holiday, that day shall not be counted in the computation.
[Adopted 8-18-1997 by Ord. No. 97-7]
This article shall be known and cited as the "Video Programming Tax Ordinance."
The following words and phrases shall have the meanings given to them in this section:
CABLE TELEVISION OPERATOR Any person or group of persons who provides cable service over a cable system and directly or through one or more affiliates owns an interest in such cable system or who otherwise controls or is responsible for, through any arrangement, the management and operation of a cable system. The term does not include a provider of wireless or direct-to-home satellite transmission service.
DIRECT-TO-HOME SATELLITE TRANSMISSION The transmission, distribution or broadcasting of video programming or services by satellite directly to subscribers' premises without the use of ground receiving or distribution equipment, except at the site of the subscribers or in the uplink process to the satellite.
GROSS RECEIPTS Shall have the same meaning as it has in any franchise agreement in effect at any time between the Township and a cable television operator. If no such agreement is in effect, then this term shall mean the amount charged for or received by video programmers from sales of video programming, and related charges for bad check and late payment charges, installation, connection, additional outlets, repair services, digital audio services, radio services, programming guides and equipment rental services, the amount charged for or received by common carriers from sales of access to video programming, and related charges for bad check and late payment charges, installation, connection, additional outlets, repair services, digital audio services, radio services, programming guides and equipment rental services, and the amount charged for or received by persons from sales of access to video programming by any means of transmission, other than wireless or direct-to-home satellite transmission, directly to subscribers with service addresses in the municipality. Gross receipts shall not include:
A. Amounts charged for or received by persons from sales of telephone access or service that entitles the subscriber to the privilege of interactive telephonic quality telecommunications with substantially all persons having telephone or radio telephone stations constituting a part of a particular system or in a specified area;
B. Any revenues received by persons providing access to video programming from video programmers for the transport of video programming to a subscriber's premises or access to the video dial tone network;
C. The tax imposed under this act if the tax is shown as a separate line charge to subscribers;
D. Any other taxes, fees or surcharges on services furnished by persons providing access to video programming or video programmers which are imposed on subscribers by the commonwealth, the County of Bucks, or the Township pursuant to statute, ordinance, resolution or regulation and which are collected on behalf of the governmental unit by the provider of the services;
E. Any portion of a debt related to the sale of video programming or the sale of access to a video network, the gross charges for which are not otherwise deductible or excludable, that have become worthless or uncollectible as determined under applicable federal income tax standards. If the portion of the debt deemed to be bad is subsequently paid, the video programmer or person shall report and pay the tax on that portion during the reporting period in which the payment is made;
F. Amounts received from retail sales of tangible personal property that provides access to video programming;
G. Amounts charged for or received by persons from sales of video programming which is delivered to subscribers through a satellite master antenna television (SMATV) system; or
H. Amounts received by a common carrier from persons for related charges for bad check and late payment charges, installation, connection, additional outlets, repair services, digital audio services, radio services, programming guides and equipment rental services that are resold by such persons to the ultimate consumer.
SUBSCRIBER The ultimate consumer of the video programming provided by video programmers over any means of transmission, other than wireless or direct-to-home satellite transmission. The term does not include a video programmer that purchases video dial tone transport service to provide video programming over a video dial tone system.
VIDEO PROGRAMMER An individual, partnership, association, joint stock company, trust, corporation, governmental entity, limited liability company or any other entity that provides video programming to subscribers.
VIDEO PROGRAMMING Video or information programming, whether in digital or analog format, that is provided by a cable operator or generally considered comparable to programming provided by a cable television operator and upon which such cable television operator pays a franchise fee. "Video programming" does not include online, interactive information services to the extent that access to such services is accomplished via a dial-up or private telephone line or via wireless or direct-to-home satellite transmission.
WIRELESS TRANSMISSION The distribution of video programming using radio communications, including, but not limited to, terrestrial-based radio systems.
There is hereby imposed a tax at the rate hereinafter set forth on the gross receipts of any video programmer derived from the sale of video programming to customers who receive that programming within Warwick Township.
The tax imposed by this article shall be the same percentage of gross receipts as the franchise fee is of gross receipts under any present or future cable television franchise agreement to which the Township is a party, provided, however, that the rate of tax shall not exceed 5% of gross receipts. If there is no cable television franchise agreement in effect at any time, the rate of tax during that time shall be 5% of gross receipts.
The tax imposed by this article shall be due and payable at the Warwick Township Building, 2581 Old York Road, Jamison, Pennsylvania 18929, on the last day of April, July, October, and January, and shall consist of the tax due on account of the gross receipts of a taxpayer for the three months preceding the month of payment.
A penalty of 10% of the amount due shall be added to any tax paid after its due date.
Any person providing video programming hereunder may be audited by the Township in accordance with the provisions of Act 37 of 1995.