[HISTORY: Adopted by the Board of Supervisors of the Township of Willistown 5-22-1979 by Ord. No. 3-1979. Amendments noted where applicable.]
This ordinance shall be known and may be cited as the "Willistown Township Community Antenna Television Ordinance."
Upon application duly made, the Township of Willistown may grant the nonexclusive right to erect, maintain and operate television transmission and distribution facilities and additions thereto in, under, over, along, across and upon the streets, lanes, avenues, sidewalks, alleys and other public places in the Township of Willistown (hereinafter referred to as "the Township") for the purpose of transmission and distribution of audio and visual impulses and television energy in accordance with the laws and regulations of the United States of America, of the State of Pennsylvania and of the Township. The Township may promulgate a form for the making of application pursuant hereto, and in the event that such a form is promulgated, then application shall be made only on such form. Any right granted pursuant to this ordinance shall be conditioned on the faithful performance and observance of the conditions, regulations and reservations herein specified and shall further be conditioned upon the prompt payment of the amounts provided for herein.
Whenever used in this ordinance, the following terms shall have the meanings indicated:
- A system for transmission of audio signals and/or visual images by means of electrical impulses.
To the extent possible, all facilities erected, maintained or operated pursuant to this ordinance shall be attached to poles already in existence in the Township. To the extent that existing poles are insufficient for the purposes hereof, or if anyone being granted the right hereunder (hereinafter referred to as "licensee") is unable to negotiate agreements satisfactory to licensee providing for use of existing poles, licensee shall have the right to erect and maintain its own poles as necessary for the construction and maintenance of its television distribution system, subject to the approval of the location of such poles by the Township Engineer; provided, however, that the approval of the Township Engineer shall not be granted for the installation of such poles when, in the professional opinion of the Township Engineer, the installation of such new transmission facilities underground is feasible, considering engineering criteria only; and provided further, that all residential areas of the Township which are now or in the future served by underground electrical utilities shall be served only by underground transmission and distribution facilities. Otherwise, the approval of the Township Engineer shall not be unreasonably withheld.
Licensee shall have the right, authority, power and privilege to attach any of its system facilities to any existing or future poles, towers or other electrical facilities owned by the Township in a manner which will not interfere with the use of such poles, towers and other electrical facilities by the Township, provided that no such attachment shall take place unless 72 hours' prior notice has been given to the Township and the Township has failed to object to such attachment. The Township shall not unreasonably object to any such attachment.
Licensee shall pay to the Township an annual fee for each pole utilized by licensee owned by the Township, which fee shall not be less than $1.50 per pole. If the licensee shall negotiate a contract with the Philadelphia Electric Company or the Bell Telephone Company of Pennsylvania for the use of their poles for a fee per pole per year, then the annual fee payable hereunder shall be the same as the fee payable pursuant to such negotiated contracts, but not less than the amount aforesaid.
In the event that the licensee negotiates a contract fee per pole per year with the Philadelphia Electric Company and with the Bell Telephone Company of Pennsylvania, providing for different fees to each of those entities, the annual fee per pole payable to the Township for each pole owned by the Township and utilized by the licensee shall be the higher of the two negotiated contract fees, but not less than the minimum fee as set forth above.
In the event that the licensee does not negotiate an agreement for the use of the poles of either the Philadelphia Electric Company or the Bell Telephone Company of Pennsylvania, the fee payable by the licensee to the Township shall be the minimum as aforesaid, an annual fee of $1.50 for each pole owned by the Township and utilized by the licensee. In the event that a licensee shall use a pole for less than a full year, then the charge for such pole shall be prorated from the day when the use of the pole began.
The Township hereby states its desire that all holders of public licenses and franchises within the corporate limits of the Township shall cooperate with every licensee hereunder to allow usage of existing poles and pole line facilities wherever possible and wherever such usage does not interfere with the normal operation of said pole and pole line so that the number of new or additional poles constructed in the Township shall be minimized.
Each licensee shall extend to the Township, free of any expense, joint use of any and all poles owned by any licensee for any proper municipal purpose insofar as may be accomplished without interference with the use and enjoyment of the licensee's own wires and fixtures. Township shall hold each licensee harmless from any and all action, causes of action or damage caused by any action of the Township in placing wires or appurtenances upon the poles of the licensee.
Insofar as it is within the power of the Township to grant the following right, the approval of any application made hereunder shall grant to the licensee whose application is approved the authority to trim trees upon and overhanging all streets, alleys, easements, sidewalks and other places within the Township, but only to the extent necessary to prevent the branches of such trees from coming into contact with the facilities of the licensee.
Each licensee whose application is approved pursuant to this ordinance shall construct an all bands system capable of providing 30 channels of television reception and FM radio to the licensee's subscribers, and installation and maintenance of equipment shall be such that standard color signals shall be transmitted to subscribers.
All structures, lines and equipment erected by any licensee within the Township shall be located so as not to interfere with the use of streets, alleys, easements and other public ways and places or with the rights and reasonable convenience of property owners, and each licensee shall comply with all ordinances of the Township now or hereafter in force.
In case of any disturbance of pavement, sidewalk, driveway or other surface, the licensee shall, at its own expense, and in a manner approved by the Township, remove, replace and restore all pavement, sidewalk, driveway or surface so disturbed to as good condition as before such disturbance.
In the event that the Township shall at any time lawfully elect to alter or change any street, alley or other public way requiring the relocation of any of the facilities of any licensee, the licensee, upon reasonable notice, shall remove and relocate any such facilities at the licensee's own expense.
Whenever it shall be necessary for any licensee to raise or lower its lines to permit the moving of any machinery or equipment or any building or other structure, the licensee shall accomplish the same upon the request of any person lawfully entitled to move such machinery or equipment or building or other structure. The actual expense of raising or lowering or temporarily removing the licensee's lines shall be paid by the person requesting the same, and the licensee shall have the right to require payment in advance of the reasonably estimated cost of such raising, lowering or temporary removal; provided, however, that if the raising, lowering or temporary removal shall be necessary for Township purposes and shall be done at the request of the Township, then such raising, lowering or temporary removal shall be accomplished by the licensee at no charge to the Township.
All poles, lines, structures and other facilities of the licensee in, on, over or under the streets, sidewalks, alleys, easements and other public grounds or places within the Township shall be maintained at all times by the licensee in a safe and appropriate condition.
Each licensee shall furnish, free of charge, at least one service distribution connection to each school, fire station, police station, Township administration building and public library located within the Township and along any of the licensee's transmission line routes and shall make available for public use and for use by persons and organizations in the Township and in the school district of which the Township is a part no fewer than two channels.
Each licensee shall, at all times, be subject to such regulations as the Township shall have in force or shall hereafter lawfully enact, either by ordinance or resolution or otherwise; provided, however, that nothing herein contained shall be deemed to render any licensee a public utility except as may be otherwise provided by the laws of the Commonwealth of Pennsylvania.
Each licensee shall maintain and operate its system and render efficient service in accordance with such rules and regulations as are now or hereafter established by the Township.
Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, installations or adjustments, the licensee shall do so at such time as will cause the least amount of inconvenience to its customers, consistent with the needs and requirements of the licensee.
Each licensee shall maintain telephone service, which shall be toll free to the caller for calls originating from within Willistown Township, for the purpose of receiving inquiries and complaints from the licensee's customers and from the general public. Each licensee shall provide sufficient maintenance personnel to respond to routine service calls within six hours during the period from 8:00 a.m. through 11:00 p.m., seven days per week, except in the case of major outages due to storms, civil unrest or acts of God. Each licensee shall report monthly to the Township Manager of Willistown Township the number and type of complaints, response time and complaints not resolved to the satisfaction of the complainant.
[Amended 2-22-2010 by Ord. No. 3-2010]
Each licensee shall, as a condition of approval of its application, enter into an agreement with the Township saving the Township harmless from any and all loss sustained by the Township by reason of any suit, judgment, execution, claim or demand whatsoever resulting from any action on the part of the licensee in the construction, operation or maintenance of its television system. For this purpose, each licensee shall comply with the following insurance requirements:
Each licensee shall, at its own cost and expense, maintain commercial general liability insurance (hereinafter "CGL policy") and provide the Township certificates of insurance designating the Township and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the licensee has obtained the insurance required in this section. Such policy or policies shall be in the minimum amount of $1,000,000 for bodily injury or death to any one person, and $1,000,000 for bodily injury or death of any two or more persons resulting from one occurrence, and $1,000,000 for property damage resulting from any one accident. Such policy or policies shall be noncancelable except upon 30 days' prior written notice to the Township. Said insurance shall cover the construction, operation and maintenance of the licensee's facilities and the conduct of the licensee's business in the Township. The CGL policy shall cover the construction, operation and maintenance of the licensee's facilities and the conduct of licensee's business in the Township. The licensee shall further cause to have any X, C, and U exclusions deleted from the CGL policy.
Each licensee shall, at its own cost and expense, maintain workers' compensation insurance meeting all legal requirements of the Commonwealth of Pennsylvania. The licensee shall further indemnify and hold harmless the Township from any workers' compensation claims to which the licensee may become subject.
Each licensee shall, at its own cost and expense, maintain automobile liability insurance in the amount of $1,000,000 combined single limit for bodily injury and property damage.
All policies of insurance maintained by the licensee, except policies, for workers' compensation insurance, shall be endorsed to include the Township as an additional insured. Specifically, the CGL policy shall name the Township as an additional insured under ISO endorsement CG 20 26 07 04 or non-ISO equivalent.
All policies of insurance maintained by the licensee shall be with insurers licensed by the Pennsylvania Insurance Commissioner to do business in the Commonwealth of Pennsylvania and rated not less than "A-minus VII" in the most current available Best's Key Rating Guide.
All policies of insurance maintained by the licensee shall contain a waiver of subrogation clause with regard to the Township and any of its officials, officers, agents, and employees (except for workers' compensation) and be primary and noncontributory to insurance coverage maintained by the franchising authority.
The Township shall notify a licensee within 30 days after the presentation of any claim or demand, either by suit or otherwise, made against the Township on account of any activity as aforesaid on the part of any licensee, provided that the failure of the Township to notify the licensee shall not relieve the licensee of its obligations hereunder unless the licensee is actually prejudiced as a result of the failure of the Township to notify it as to any claim or demand. As a condition of the approval of any application hereunder, the Township may require the posting of bond, with such surety as the Township deems appropriate, in a form satisfactory to the Township and in such amount as the Township deems satisfactory to guarantee that all undertakings and obligations of each licensee pursuant to this ordinance shall be performed in a timely manner.
Licensee shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service, but the licensee shall not, as to rate, charges, service, facilities, rules and regulations or any other respect, make or grant any preference or advantage to any customer or subject any customer to any prejudice or disadvantage, but nothing herein contained shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules, provided that the classification of customers shall be reasonable and any customer coming within a particular classification shall be entitled to the same rates and any other customer coming within that classification. Rates shall be the same for all classifications of customers served by the licensee from similar facilities. Nothing herein contained shall prevent any licensee from providing a preferential rate or free service to the Township or for any public purpose.
Rights granted to any licensee hereunder shall take effect and be in full force from and after the date upon which each application is approved by the Township. The rights granted hereunder shall continue in full force and effect for an initial period of not less than 15 years from the date of application approval, and each licensee whose application is approved shall have the right to renew the rights granted hereunder for an additional term of 15 years under the terms hereof, from and after the expiration date of the initial fifteen-year period. The right to renew for the additional period shall be exercised by the licensee in the following manner only: by giving the Township notice, in writing, of the licensee's election to exercise the option, which notice shall be given not less than six months, nor more than two years, prior to the expiration of the initial term granted hereunder; such notice to be either personally served or mailed, certified or registered mail, return receipt requested, to the Township at the Township's administrative offices.
If any licensee should violate any of the terms, conditions or provisions of this ordinance, or if the licensee should fail to comply with any lawful provision of any ordinance of the Township regulating the use by any licensee of streets, alleys, easements or public ways of the Township, or if any licensee should violate any other lawful rule or regulation applicable to it and continue to violate the same for a period of 30 days after licensee shall have been notified, in writing, by the Township to desist from such violation, the licensee may, at the Township's option, be deemed to have forfeited and annulled all the rights and privileges granted hereunder. If the rights granted hereunder are forfeited pursuant to this section, the licensee may dispose of its property located within the Township in any lawful manner.
In order to render the service contemplated by this ordinance, each licensee may require service from a point-to-point microwave service common carrier licensed by the Federal Communications Commission. Within 120 days after approval of its application hereunder, the licensee shall submit an order for service with a qualified carrier. If the licensee shall not, within six months from the date the qualified carrier completes construction of the facilities necessary to serve licensee, have commenced the installation of its television distribution system, or in the event that the licensee does not place an order for service with a qualified carrier, as required above, the approval of the licensee's application may be revoked and canceled by the Township. In any event, if the licensee shall not, within two years from the date of approval of its application, have begun to supply its television distribution service to subscribers located within the Township or if the licensee shall not have made available its television distribution service to all residents of the Township, either with cables or microwave distribution system, within two years from the date the first customer in the Township is provided such service, the approval of the licensee's application may be revoked and canceled by the Township.
[Amended 2-22-2010 by Ord. No. 3-2010]
Each licensee shall pay to the Township an amount which, when added to the amount of all taxes, licenses, fees or impositions levied or imposed by the Township upon each licensee or upon its property or operations for the preceding calendar year, will equal 5% of the gross service revenues received by the licensee from its operations within the Township. "Gross service revenues," as used herein, shall mean the gross annual amount of regular service charges, plus any amount charged for special programs, services or projects actually paid for by subscribers served within the Township. The payments required hereunder shall be made on a quarterly basis and shall be due 45 days after the close of each calendar quarter (i.e., May 15, August 15, and November 15) and 60 days after the close of the calendar year (last day of February). The payments required hereunder shall be accompanied by a report prepared by a representative of the licensee showing the basis for the computation of the payments which are paid during that period.
Each licensee shall keep records, which shall be satisfactory in all respects to the Township, of account showing the date and amount of all payments received. The duly authorized agent of the Township shall have the right, at its expense, to inspect and audit the licensee's records of gross revenues of any licensee at any reasonable time.
Nothing herein contained shall be construed as requiring any licensee to pay to the Township any portion of the revenue derived from the sale of its service by the licensee to customers residing outside the corporate limits of the Township; provided, however, that upon annexation to the Township of any territory not now within the corporate limits of the Township, the portion of the licensee's facilities that may be located within such annexed territory and upon the streets, alleys and public grounds thereof shall thereafter be subject to all of the terms of this ordinance.
Editor's Note: Res. No. 10-1995, adopted 4-11-1995, provided that the franchise of Barron Communications Corp. to provide cable television service to the Township of Willistown be extended for a period of 15 years under the terms and conditions of Ord. No. 3-1979, amended as follows: "Franchise fees will equal 4% of gross service revenues received by licensee from its operations within the Township during such time as it is permissible by federal or state law to itemize such fees on customer billing statements. Should the itemization of such fees be disallowed by subsequent federal, state or local law, the calculation of franchise fees will revert at that time to the original terms of Ord. No. 3-1979, Section 12."
No licensee hereunder shall engage in the business of sale or repair of television receivers owned by its subscribers, nor will any licensee be responsible for the operating condition of said receiver. Any service furnished by any licensee to a subscriber pursuant to this ordinance shall terminate at the point of connection of the licensee's facilities to the subscriber's receiver.
Nothing herein contained shall be deemed to render any right granted hereunder to be exclusive to any licensee.
All other ordinances or parts of ordinances inconsistent with the provisions hereof are hereby repealed.
The rights granted hereunder may not be assigned or transferred by any licensee, except with the approval of the Township first had and obtained in writing, which approval may be withheld only for good cause shown; but as a condition of granting approval of transfer or assignment, the Township may require the proposed transferee or assignee to submit reasonable information concerning itself, to submit the same information as would be required in connection with making a new application hereunder and to execute an appropriate instrument signifying the acceptance by the transferee or assignee of all of the terms and conditions of this ordinance and agreeing to perform the same.
This ordinance shall take effect five days after the adoption hereof.