[HISTORY: Adopted by the Board of Commissioners
of the Township of Haverford 10-9-1972 by Ord. No. 1488; amended
in its entirety 8-9-1993 by Ord. No. 2179. Subsequent amendments
noted where applicable.]
A.
Title. This ordinance shall be known and may be cited
as the "Haverford Cable Communications Regulatory Code."
B.
Purpose. The Township of Haverford finds that the
development of cable television systems has the potential of having
a great benefit to and positive impact on the people of Haverford.
Because of the complex and rapidly changing technologies associated
with cable television, the township also finds that public convenience,
safety and general welfare can best be served by establishing regulatory
powers vested in the township or such persons as the township so designates.
Further, the township recognizes that cable television systems have
the capacity to provide not only entertainment and information services
to township residents but also a variety of broadband, interactive
services to township agencies and other institutions. For these purposes,
the following goals, among others, underlie the provisions set forth
in this ordinance:
(1)
Cable services should be available to as many township
residents as possible.
(2)
A cable system should be capable of accommodating
both the present and reasonably foreseeable future cable-related needs
of the community.
(3)
A cable system should be constructed and maintained
during the franchise term so that new components may be integrated
to the maximum extent possible into existing system facilities.
(4)
A cable television system should be responsive to
the needs and interests of the local community.
C.
The township intends that all provisions set forth
in this ordinance be construed to serve the public interest and the
foregoing public purposes and that any franchise issued pursuant to
this ordinance be construed to include the foregoing findings and
public purposes as integral parts thereof.
A.
For the purposes of this ordinance, the following
terms, phrases, words and abbreviations shall have the meanings given
herein, unless otherwise expressly stated. When not inconsistent with
the context, words used in the present tense include the future tense;
words in the plural number include the singular number; and words
in the singular number include the plural number; and the masculine
gender includes the feminine gender. The words "shall" and "will"
are mandatory, and "may" is permissive. Unless otherwise expressly
stated, words not defined herein shall be given the meanings set forth
in Title 47 of the United States Code, Chapter 5, Subchapter V-A,
47 U.S.C. § 521 et seq., as amended, and, if not defined
therein, their common and ordinary meanings.
B.
ACCESS CHANNEL
AFFILIATE
BASIC SERVICE
BOARD
CABLE ACT
CABLE SERVICE or SERVICE
CABLE SYSTEM or SYSTEM
(1)
(2)
(3)
(4)
EDUCATIONAL ACCESS CHANNEL
FCC
FRANCHISE
FRANCHISE AGREEMENT
FRANCHISE AREA
FRANCHISEE
GOVERNMENTAL ACCESS CHANNEL
GROSS ANNUAL REVENUES
NONCOMMERCIAL
PAY TELEVISION
PERSON
PUBLIC ACCESS CHANNEL
PUBLIC RIGHT-OF-WAY
SALE
SERVICE TIER
STREET
SUBSCRIBER
SYSTEM FACILITIES or FACILITIES
TOWNSHIP
TRANSFER
USER
As used in this ordinance, the following terms shall
have the meanings indicated:
Any channel on a cable system set aside by the franchisee
for public, educational and/or governmental use.
Any person who owns or controls, is owned or controlled by
or is under common ownership or control with the franchisee.
Any service tier that includes the retransmission of local
television broadcast signals.
The Board of Commissioners of Haverford Township.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended from time to time.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable television service which includes
video programming and which is provided to multiple subscribers within
the township, but such term does not include:
A facility that serves only to retransmit the
television signals of one or more television broadcast stations.
A facility that serves only subscribers in one
or more multiple-unit dwellings under common ownership, control or
management, unless such facility or facilities use any public right-of-way,
including streets or easements.
A facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Cable Act,
except that such facility shall be considered a "cable system" to
the extent that such facility is used in the transmission of video
programming, whether on a common-carrier or non-common-carrier basis,
directly to subscribers.
Any facilities of any electric utility used
solely for operating its electric utility systems.
Any channel on a cable system set aside by the franchisee
for noncommercial educational use.
The Federal Communications Commission, its designee or any
successor governmental entity thereto.
The nonexclusive rights granted in accordance with this ordinance
to construct, operate and maintain a cable system along the public
rights-of-way within all or a specified area of the township. Any
such authorization, in whatever form granted, may specifically include
a license or permit to the system for the provision of noncable services;
it shall not mean or include any license or permit required for the
privilege of transacting and carrying on a business within the township
as required by the ordinances and laws of the township or for excavating
or performing other work in or along public rights-of-way.
A contract entered into in accordance with the provisions
of this ordinance between the township and a franchisee that sets
forth, subject to this ordinance, the terms and conditions under which
the franchise will be exercised.
The area of the township that the franchisee is authorized
to serve by its franchise agreement.
The natural person(s), partnership(s), domestic or foreign
corporation(s), association(s), joint venture(s) or organization(s)
of any kind which has been granted a cable television franchise by
the township.
Any channel on a cable system set aside by the franchisee
for noncommercial government access use.
Any and all cash, credits, property or other consideration
of any kind or nature received annually directly or indirectly by
the franchisee, its affiliates or any person in which the franchisee
has a financial interest or by any other entity that is a cable operator
of the system arising from, attributable to or in any way derived
from the provision by the franchisee of cable service, including the
studios and other facilities associated therewith. "Gross annual revenues"
include but are not limited to monthly fees charged subscribers for
any basic, optional, premium, per-channel or per-program service;
installation, disconnection, reconnection and change-in-service fees;
leased channel fees; late fees and administrative fees; fees, payments
or other consideration received from programmers for carriage of programming
on the system; revenues from converter rentals or sales; studio rental,
production equipment and personnel fees; advertising revenues; barter;
revenues from program guides; and revenues from home shopping and
bank-at-home channels. The township may require in a franchise agreement
that "gross annual revenues" also include revenues from the sale or
carriage of noncable services, including information services. "Gross
annual revenues" shall be the basis for computing the franchise fee
under this ordinance. "Gross annual revenues" shall not include any
taxes on services furnished by the franchisee which are imposed directly
on any subscriber or user by the state, township or other governmental
unit and which are collected by the franchisee on behalf of said governmental
unit, nor shall it include revenue derived from the sale or rental
of real property interests of the franchisee.
Refers to programming, the primary purpose of which is not
to propose a sale or barter of a commercial product or service. The
term expressly does not refer to programming, the cost of which is
underwritten by one or more commercial or noncommercial programmers,
even where the underwriting is acknowledged as part of the program.
A cable service that is sold on a per-channel or per-program
basis.
An individual, partnership, association, joint-stock company,
organization, corporation or any lawful successor thereto or transferee
thereof.
Any channel on a cable system set aside by the franchisee
for noncommercial use by the general public or noncommercial organizations
and which is available for such use on a nondiscriminatory basis.
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, parkway, waterway,
easement or similar property in which the township now or hereafter
holds any property interest which, consistent with the purposes for
which it was dedicated, may be used for the purpose of installing
and maintaining a cable system. No reference herein, or in any franchise
agreement, to a "public right-of-way" shall be deemed to be a representation
or guaranty by the township that its interest or other right to control
the use of such property is sufficient to permit its use for such
purposes, and a franchisee shall be deemed to gain only those rights
to use as are properly in the township and as the township may have
the undisputed right and power to give.
Any sale, exchange or barter transaction.
A category of cable service provided by the franchisee and
for which a separate charge is made by the franchisee.
The surface of and the space above or below any public street,
public roadway, public highway, public freeway, public lane, public
way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or public right-of-way
now or hereafter held by the township which shall entitle the franchisee
to the use thereof for the purposes of installing over poles such
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments and other property as may be ordinarily necessary
and appurtenant to the operation of the system.
Any person who legally receives cable service and noncable
service, with the exception of telephony-like services, whether or
not a fee is paid for such service.
Cable system equipment used by the franchisee to provide
service in the franchise area.
The Township of Haverford, Pennsylvania, as represented by
the Board.
Any transaction in which an ownership or other interest in
a franchisee, its cable system or any person that is a cable operator
of the cable system is transferred from one person or group of persons
to another person or group of persons so that control of the franchisee
is transferred or the rights and/or obligations held by the franchisee
under a franchise agreement are transferred or assigned to another
person or group of persons. Unless otherwise specified in a franchise
agreement, "control" for these purposes means working control, in
whatever manner exercised. Unless otherwise specified in a franchise
agreement, the addition, deletion or other change of any general partner
of the franchisee, any person who owns or controls the franchisee
or a cable operator of the cable system is such a change of control.
A person or organization utilizing a channel or equipment
and facilities for purposes of producing and/or transmitting material,
as contrasted with the receipt thereof in the capacity of a subscriber.
The township may grant one or more cable television
franchises, and each such franchise shall be awarded in accordance
with and subject to the provisions of this ordinance. This ordinance
may be amended from time to time, and in no event shall this ordinance
be considered a contract between the township and a franchisee such
that the township would be prohibited from amending any provision
hereof.
No person may construct or operate a cable system
over, on or under public streets in the township without a franchise
granted by the township unless otherwise authorized by law, and no
person may be granted a franchise without having entered into a franchise
agreement with the township pursuant to this ordinance.
A.
A franchise authorizes use of township streets for
installing cables, wires, lines, optical fiber, underground conduit
and other facilities to operate a cable system and to provide other
communications and information services within a franchise area but
does not expressly or implicitly authorize the franchisee to provide
service to, or install cables, wires, lines, underground conduit or
any other equipment or facilities on, private property without owner
consent [except for use of compatible easements pursuant to Section
621 of the Cable Act, 47 U.S.C. § 541(a)(2)] or to use publicly
or privately owned conduits without a separate agreement with the
owners.
B.
The term of a franchise shall not exceed 12 years
and may not exceed five years unless the franchise agreement contains
clear and enforceable provisions for regulating upgrades, improving
any customer service requirements, reevaluating access requirements
and making such other requirements as may be necessary in light of
advancements in technology.
C.
A franchise is nonexclusive and will not explicitly
or implicitly preclude the issuance of other franchises to operate
cable systems within the township or affect the township's right to
authorize use of township streets by other persons to operate cable
systems or for other purposes as it determines appropriate.
D.
Once a franchise agreement has been accepted and executed
by the township and a franchisee, such franchise agreement shall constitute
a contract between the franchisee and the township, and the terms,
conditions and provisions of such franchise agreement, subject to
the ordinance and all other duly enacted and applicable laws, shall
define the rights and obligations of the franchisee and the township
relating to the franchise.
E.
All privileges prescribed by a franchise shall be
subordinate to any prior lawful occupancy of the streets, and the
township reserves the right to reasonably designate where a franchisee's
facilities are to be placed within the streets.
F.
A franchise shall be a privilege that is in the public
trust and personal to the original franchisee. Except as otherwise
agreed to in a franchise agreement, no transfer of a franchise shall
occur without the prior consent of the township and unless application
is made by the franchisee and township approval obtained, pursuant
to this ordinance and the franchise agreement.
A.
A franchisee shall at all times be subject to and
shall comply with all applicable federal, state and township laws.
A franchisee shall at all times be subject to all lawful exercise
of the police power of the township, including all rights the township
may have under 47 U.S.C. § 552.
B.
No course of dealing between a franchisee and the
township, nor any delay on the part of the township or franchisee
in exercising any rights hereunder, shall operate as a waiver of any
such rights of the township or franchisee or acquiescence in the actions
of the township or franchisee in contravention of rights except to
the extent expressly waived by the township or franchisee or expressly
provided for in a franchise agreement.
C.
The township shall have the maximum plenary authority
to regulate cable systems, franchisees and franchises as may now or
hereafter be lawfully permissible; except where rights are expressly
waived by a franchise agreement, they are reserved, whether expressly
enumerated or not.
A.
The express terms of this ordinance will prevail over
conflicting or inconsistent provisions in a franchise agreement unless
such franchise agreement expresses an explicit intent to waive a requirement
of this ordinance.
B.
The provisions of a franchise agreement will be liberally
construed in favor of the township or franchisee in order to effectuate
the purposes and objectives of this ordinance and the franchise agreement
and to promote the public interest.
C.
Except as to matters that are governed by federal
law or regulation, a franchise agreement will be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
Any person who occupies township streets or
public rights-of-way for the purpose of operating or constructing
a cable system and who does not hold a valid franchise from the township
shall be subject to all provisions of this ordinance, including but
not limited to its provisions regarding construction and technical
standards and franchise fees. In its discretion, the township at any
time may require such person to enter into a franchise agreement within
30 days of receipt of a written notice by the township that a franchise
agreement is required; and/or require such person to remove its property
and restore the area to a condition satisfactory to the township within
such time period; and/or remove the property itself and restore the
area to a satisfactory condition and charge the person the costs therefor.
In no event shall a franchise be created unless it is issued by action
of the township and subject to a franchise agreement.
Nothing in this ordinance or the franchise shall
limit any right the township may have to acquire by eminent domain
or otherwise any property of the franchisee.
A.
A written application shall be filed with the township
for grant of an initial franchise; renewal of a franchise under either
the formal or informal procedures in accordance with Section 626 of
the Cable Act, 47 U.S.C. § 546; or modification of a franchise
agreement pursuant to this ordinance or a franchise agreement. The
township may require the applicant to demonstrate in its application
compliance with all requirements of this ordinance and all applicable
laws.
B.
To be acceptable for filing, a signed original of the application shall be submitted together with 10 copies. The application must be accompanied by the required application filing fee as set forth in § A186-14, conform to any applicable request for proposals and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
C.
All applications accepted for filing shall be made
available by the township for public inspection.
A.
A person may apply for an initial franchise by submitting a request for issuance of a request for proposals (RFP) and requesting an evaluation of that proposal pursuant to Subsection D. Upon receipt of a request for an RFP, the township shall commence a proceeding to identify the future cable-related needs and interests of the community and, upon completion of that proceeding, shall promptly issue an RFP and proposed franchise agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The applicant shall respond within the time directed by the township, providing the information and material set forth in Subsection C. The procedures, instructions and requirements set forth in the RFP shall be followed by each applicant as if set forth and required herein. The Township Manager, or his designee, shall be authorized to seek additional information from any applicant and to establish deadlines for the submission of that information.
C.
An RFP for the grant of an initial franchise shall
require, and an unsolicited proposal shall contain, at minimum, the
following information:
(1)
Name and address of the applicant and identification
of the ownership and control of the applicant, including:
(a)
The names and addresses of the 10 largest holders
of an ownership interest in the applicant and affiliates of the applicant
and all persons with five-percent or more ownership interest in the
applicant and its affiliates.
(b)
The persons who control the applicant and its
affiliates.
(c)
All officers and directors of the applicant
and its affiliates.
(d)
Any other business affiliation and cable system
ownership interest of each named person.
(2)
A demonstration of the applicant's technical
ability to construct and/or operate the proposed cable system, including
identification of key personnel.
(3)
Demonstration of qualifications.
(a)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system, including but
not limited to a demonstration that the applicant meets the following
criteria:
[1]
The applicant must not have submitted an application
for an initial or renewal franchise to the township which was denied
on the grounds that the applicant failed to propose a system meeting
the cable-related needs and interests of the community or as to which
any challenges to such franchising decision were finally resolved
adversely to the applicant within three years preceding the submission
of the application.
[2]
The applicant must not have had any cable television
franchise validly revoked by any franchising authority within three
years preceding the submission of the application.
[3]
The applicant must have the necessary authority
under Pennsylvania law to operate a cable system.
[4]
A franchise will not be issued to an applicant
that may not hold the franchise as a matter of federal law. An applicant
must have, or show that it is qualified to obtain, the necessary federal
licenses or waivers required to operate the system proposed.
[5]
An applicant shall not be issued a franchise
if, at any time during the 10 years preceding the submission of the
application, the applicant was convicted of any act or omission of
such character that the applicant cannot be relied upon to deal truthfully
with the township and the subscribers of the cable system or to substantially
comply with its lawful obligations under applicable law, including
obligations under consumer protection laws and laws prohibiting anticompetitive
acts, fraud, racketeering or other similar conduct.
[6]
An applicant shall not be issued a franchise
if it files materially misleading information in response to an RFP
issued by the township or intentionally withholds information that
the applicant lawfully is required to provide.
[7]
An applicant shall not be issued a franchise
if an elected official of the township holds a controlling interest
in the applicant or an affiliate of the applicant.
(b)
Notwithstanding the foregoing, the township shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under Subsection C(3)(a)[2] or [5] by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom, the lack of involvement of the applicant's principals or the remoteness of the matter from the operation of cable television systems.
(4)
A statement prepared by a duly authorized financial
officer regarding the applicant's financial ability to complete the
construction and operation of the cable system proposed.
(5)
A description of the applicant's prior experience
in cable system ownership, construction and operation and identification
of communities in which the applicant or any of its principals have,
or have had, a cable franchise or license or any interest therein.
(6)
Identification of the area of the township to
be served by the proposed cable system, including a description of
the proposed franchise area's boundaries.
(7)
A detailed description of the physical facilities
proposed, including channel capacity, technical design, performance
characteristics, head end and access facilities.
(8)
Where applicable, a description of the construction
of the proposed system, including an estimate of plant mileage and
its location, the proposed construction schedule, a description, where
appropriate, of how services will be converted from existing facilities
to new facilities and information on the availability of space in
conduits, including, where appropriate, an estimate of the cost of
any necessary rearrangement of existing facilities.
(9)
The proposed rate structure, including projected
charges for each service tier, installation, converters and other
equipment or services.
(10)
A demonstration of how the applicant's proposal
will reasonably meet the future cable-related needs and interests
of the community, including descriptions of how the proposal will
meet the needs described in any recent community needs assessment
conducted by or for the township and how the proposal will provide
adequate public, educational and governmental access channel capacity,
facilities or financial support to meet the community's needs and
interests.
(11)
Pro forma financial projections for the proposed
franchise term, including a statement of projected income, and a schedule
of planned capital additions, with all significant assumptions explained
in notes or supporting schedules.
(12)
If an applicant proposes to provide cable service
to an area already served by an existing cable franchisee, the identification
of the area where the overbuild would occur, the potential subscriber
density in the area that would encompass the overbuild and the ability
of the streets to accommodate an additional system.
(13)
Any other information as may be reasonably necessary
to demonstrate compliance with the requirements of this ordinance.
(14)
Information that the township may request of
the applicant that is relevant to the township's consideration of
the application.
(15)
An affidavit or declaration of the applicant
or authorized officer certifying the truth and accuracy of the information
in the application, acknowledging the enforceability of application
commitments and certifying that the proposal meets all federal and
state law requirements.
D.
In evaluating an application for a franchise, the
township shall consider, among other things, the following factors:
(1)
The extent to which the applicant has substantially
complied with the applicable law and the material terms of any existing
cable franchise for the township.
(2)
Whether the quality of the applicant's service
under an existing franchise in Haverford, including signal quality,
response to customer complaints and billing practices, has been reasonable
in light of community needs and interests of the communities served.
(3)
Whether the applicant has the financial, technical
and legal qualifications to provide cable service.
(4)
Whether the applicant's proposal is reasonable
to meet the future cable-related needs and interests of the community,
taking into account the cost of meeting such needs and interests.
(5)
Whether, to the extent not considered as part of Subsection D(4), the applicant will provide adequate public, educational and governmental access channel capacity, facilities or financial support.
(6)
Whether issuance of a franchise is warranted
in the public interest considering the immediate and future effect
on the public rights-of-way and private property which would be used
by the cable system, including the extent to which installation or
maintenance as planned would require replacement of property or involve
disruption of property, public services or use of the public rights-of-way;
the effect of granting a franchise on the ability of cable to meet
the cable-related needs and interests of the community; and, to the
extent permissible pursuant to the provisions of the Cable Act, the
comparative superiority or inferiority of competing proposals.
(7)
Whether the applicant or an affiliate of the
applicant owns or controls any other cable system in the township
or whether grant of the application may eliminate or reduce competition
in the delivery of cable service in the township.
E.
If the township finds that it is in the public interest
to issue a franchise considering the factors set forth above, it shall
issue a franchise, subject to the applicant's entry into an appropriate
franchise agreement. If the township denies a franchise, it will issue
a written decision explaining why the franchise was denied. Prior
to deciding whether to issue or not to issue a franchise, the township
may hold one or more public hearings or implement other procedures
under which comments from the public on an applicant's proposal may
be received. The township also may grant or deny a request for a franchise
based on its review of an application without further proceedings
and may reject any application which is incomplete or fails to respond
to an RFP. This ordinance is not intended and shall not be interpreted
to grant any applicant or existing franchisee standing to challenge
the issuance of a franchise to another.
F.
If the township grants a franchise subject to the
applicant's entry into a franchise agreement, the township and the
franchisee shall agree on the terms of a franchise agreement within
30 calendar days from the date of the township resolution granting
the franchise. This period may be extended for good cause by the township.
If agreement is not reached with the township within 30 calendar days
from the date of the township resolution granting the franchise or
if the period is not extended by the township, the franchise will
be null and void without further action by the township. The township
shall approve or disapprove the proposed agreement by resolution or
may direct that it be subject to further negotiation.
Renewal shall be conducted in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. § 546. If neither the franchisee nor the township activates or can activate the renewal process set forth in 47 U.S.C. § 546(a) through (c) (including, for example, if the provisions are repealed), the provisions of § A186-11 shall apply and a renewal request shall be treated the same as a request for an initial franchise. The following additional requirements shall apply to all applicants seeking renewal after the effective date of this ordinance where the procedures set forth in 47 U.S.C. § 546(a) through (c) are activated:
A.
Upon completion of the review and evaluation process
set forth in Section 626(a)(1) and (2) of the Cable Act, 47 U.S.C.
§ 546(a)(1) and (2), should that process be invoked, a cable
operator seeking renewal of a franchise may, on its own initiative
or at the request of a franchising authority, submit a proposal for
renewal.
B.
Upon receipt of the renewal application, the township
shall publish notice of its receipt and make copies available for
review by the public.
C.
Within four months of the date it receives the proposal
for renewal, and based on the standards set forth in Section 626 cc
of the Cable Act, 47 U.S.C. § 546 cc, the township will
either:
D.
If a preliminary assessment is made that a franchise
should not be renewed, at the request of the franchisee, the township
will commence a proceeding in accordance with Section 626(c) of the
Cable Act, 47 U.S.C. § 546(c), to address the issues set
forth in Section 626(c)(1)(A) through (D) of the Cable Act, 47 U.S.C.
§ 546(c)(1)(A) through (D).
E.
If renewal of a franchise is denied, the township
may acquire ownership of the cable system or effect a transfer of
ownership of the system to another person upon approval of the Board.
Any such acquisition or transfer shall be at fair market value, determined
on the basis of the cable system valued as a going concern but with
no value allocated to the franchise itself.
F.
If renewal of a franchise is denied and the township
does not purchase the cable system or approve or effect a transfer
of the cable system to another person, the township may require the
former franchisee to remove its facilities and equipment at the former
franchisee's expense. If the former franchisee fails to do so within
a reasonable period of time, the township may have the removal done
at the former franchisee's and/or surety's expense.
G.
To the extent that any of the provisions of this ordinance
are inconsistent with Section 626 of the Cable Act, 47 U.S.C. § 546,
they shall not apply.
An application for modification of a franchise
agreement shall include, at minimum, the following information:
A.
The specific modification requested.
B.
The justification for the requested modification,
including the impact of the requested modification on subscribers
and others and the financial impact on the applicant if the modification
is approved or disapproved, demonstrated through, inter alia, submission
of financial pro formas.
C.
A statement whether the modification is sought pursuant
to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if
so, a demonstration that the requested modification meets the standards
set forth in 47 U.S.C. § 545.
D.
Any other information that the applicant believes
is necessary for the township to make an informed determination on
the application for modification.
E.
An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information in the
application and certifying that the application is consistent with
all federal and state law requirements.
To be acceptable for filing, an application
submitted after the effective date of this ordinance shall be accompanied
by a filing fee in the following amount, as appropriate:
An applicant shall be notified of any public
hearing held in connection with the evaluation of its proposal and
shall be given an opportunity to be heard.
Unless a review of future cable-related needs
and interests (whether conducted prior to issuance of an RFP or in
evaluating an unsolicited proposal) shows that different standards
should apply, every cable system must at least satisfy the following
requirements:
A.
Minimum capacity. Any cable system constructed, upgraded
or reconstructed after the effective date of this ordinance at a minimum
shall be a fiber-based, five-hundred-fifty-megahertz system. The township
may require in a franchise agreement that the system shall be designed
in accordance with FCC guidelines pertaining to consumer friendly
interfaces so that all service tiers can be received without the aid
of a converter.
B.
Description of system. The franchisee shall provide
the township a full description of the system proposed for construction
and shall, upon completion of any system modification or upgrade,
submit to the township as-built maps for the entire system, as modified
or upgraded, to the extent such maps have not previously been provided
to the township.
D.
Provision of service. Unless otherwise specified in
a franchise agreement, after cable service has been established by
activating trunk distribution cable for an area specified in a franchise
agreement, the franchisee shall provide cable service to any household
requesting cable service within that area, including each multiple-dwelling
unit in that area, except for multiple-dwelling units to which it
cannot obtain access.
E.
Technical standards.
(1)
Any cable system within the township shall meet
or exceed the technical standards set forth in 47 CFR § 76.601
and any other applicable technical standards as specified in a franchise
agreement, including any such standards as hereafter may be amended
or adopted by the township.
(2)
A franchisee shall not design, install or operate
its facilities in a manner that will interfere with the signals of
any broadcast station, the facilities of any public utility, the cable
system of another franchisee or individual or master antennas used
for receiving television or other broadcast signals.
(3)
At the times specified in the franchise agreement
or as required by FCC rules, the franchisee shall perform at its expense
proof-of-performance tests and such other tests as may be specified
in the franchise agreement designed to demonstrate compliance with
this section, the franchise agreement and FCC requirements. The franchisee
shall provide the proof of performance test results promptly to the
township. The township may require in a franchise agreement that a
franchisee shall provide the township 10 days' advance written notice
when a proof of performance or other required test is scheduled so
that the township may have an observer present. The township shall
have the right to inspect the cable system facilities during and after
their construction to ensure compliance with this section, the franchise
agreement and applicable provisions of local, state and federal law
and may require in a franchise agreement that the franchisee perform
additional tests based upon its prior investigation of system performance
or upon subscriber complaints.
A.
Emergency alert system. The franchisee shall install
and thereafter maintain for use by the township an emergency alert
system (EAS). This EAS shall be remotely activated by telephone and
shall allow a representative of the township to override the audio
on all channels on the system in the event of a civil emergency or
for reasonable tests. The township will provide reasonable notice
to the franchisee prior to any test use of the EAS.
B.
Access channels.
(1)
The township may require in a franchise agreement
that the franchisee shall reserve for use by the township, without
charge, a minimum of 5% of its downstream channel capacity for public,
educational and governmental use or, if greater, the amount of capacity
required to transmit three six-megahertz channels to subscribers delivering
a signal the technical quality of which is equivalent to the technical
quality of other channels on the system.
(2)
The township may require in a franchise agreement
that the franchisee shall reserve for use by the township, without
charge, a minimum of 20 megahertz of its activated upstream capacity
for public, educational and governmental use or, if greater, the amount
of capacity required to transmit three six-megahertz channels upstream.
(3)
The township may require in a franchise agreement
that the franchisee shall provide all modulators, demodulators, laser
transmitters/receivers and other devices as may be required to permit
use of the upstream and downstream capacity and that, after January
1, 1994, upon the township's request, the franchisee shall make such
modifications as may be required to use video compression technology
and add such equipment in connection with all or part of the upstream
and downstream channel capacity for public, educational and governmental
use.
C.
Studio and equipment. The township may require in
a franchise agreement that the franchisee shall provide to the township
sufficient funds for the purchase of one public access facility located
within the township, which facility shall include an adequate studio,
editing suites, control room, playback area, administrative and training
space, tape, set and equipment storage space, and all property shall
be secured, ventilated, air conditioned, heated, lighted, wired and
accessible to the handicapped. The township may require in a franchise
agreement that the franchisee shall also provide equipment to fully
equip the facility, including the studio, separate portable equipment
suitable for community use, automated playback equipment and control
facilities so that signals can be received on the upstream channels
or originated from the facility and then routed from the facility
to the system head end and onto appropriate channels on the cable
system.
D.
Remote line telecasting.
E.
Haverford Public Access Corporation.
(1)
Immediately upon the award of the first franchise
pursuant to this ordinance, there shall be established a nonprofit
organization known as the "Haverford Public Access Corporation." The
Board of Directors of the Corporation shall consist of five members,
to be appointed by the Board. Members of the Corporation's Board shall
be appointed for terms of no longer than four years per appointment.
(2)
The Corporation shall manage, promote and develop
the best use of the channels, equipment and facilities for public,
educational and governmental use provided under any franchise agreement
and in particular shall seek to stimulate the use of public, educational
and governmental channels.
A.
System construction schedule. The franchisee shall
specify the construction schedule.
B.
Construction standards.
(1)
The construction, operation, maintenance and
repair of the cable system shall be in accordance with all applicable
sections of the Occupational Safety and Health Act of 1970, as amended,
the National Electrical Safety Code, the National Electric Code and
other applicable federal, state or local laws and regulations that
may apply to the operation, construction, maintenance or repair of
a cable system, including, without limitation, local zoning and construction
codes and laws and accepted industry practices, all as hereafter may
be amended or adopted.
(2)
All installation of electronic equipment shall
be of a permanent nature, using durable components.
(3)
Without limiting the foregoing, antennas and
their supporting structures (towers) shall be painted, lighted, erected
and maintained in accordance with all applicable rules and regulations
of the Federal Aviation Administration and all other applicable state
or local laws, codes and regulations, all as hereafter may be amended
or adopted.
(4)
Without limiting the foregoing, all the franchisee's
plant and equipment, including but not limited to the antenna site,
head end and distribution system, towers, house connections, structures,
poles, wires, cable, coaxial cable, fiber optic cable, fixtures and
apparatuses, shall be installed, located, erected, constructed, reconstructed,
replaced, removed, repaired, maintained and operated in accordance
with good engineering practices, performed by experienced maintenance
and construction personnel so as not to endanger or interfere with
improvements the township shall deem appropriate to make or to interfere
in any manner with the rights-of-way or legal rights of any property
owner or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic.
(5)
The franchisee shall at all times employ ordinary
care and shall install and maintain in use commonly accepted methods
and devices preventing failures and accidents which are likely to
cause damage, injury or nuisance to the public.
(6)
Any and all streets, public property or private
property which is disturbed or damaged during the construction, repair,
replacement, relocation, operation, maintenance or construction of
the system shall be promptly repaired by the franchisee at its expense.
(7)
A franchisee shall, at its expense and by a
time specified by the township, protect, support, temporarily disconnect,
relocate or remove any of its property when required by the township
by reason of traffic conditions, public safety, street construction,
street resurfacing or widening, change of street grade, installation
of sewers, drains, water pipes, power lines, signal lines, tracks
or any other type of municipal or public utility improvements, street
vacation or for any other purpose where the convenience of the township
would be served thereby; provided, however, that the franchisee shall,
in all such cases, have the privilege of abandoning any property in
place. The township shall reimburse a franchisee under this subsection
to the same extent that it reimburses telephone, electric and other
like companies for such disconnection, relocation or removal.
(8)
If any removal, relaying or relocation is required
to accommodate the construction, operation or repair of the facilities
of another person that is authorized to use the public streets, a
franchisee shall, after 30 days' advance written notice, take action
to effect the necessary changes requested by the responsible entity.
The township may resolve disputes as to responsibility for costs associated
with the removal, relaying or relocation of facilities as among entities
authorized to install facilities in the public streets if the parties
are unable to do so themselves.
(9)
In the event of an emergency, or where a cable
system creates or is contributing to an imminent danger to health,
safety or property, the township may remove, relay or relocate that
cable system without prior notice. When possible, the township will
make reasonable efforts to notify the franchisee and give the franchisee
reasonable opportunity to cure.
(10)
A franchisee shall, on the request of any person
holding a building moving permit issued by the township, temporarily
raise or lower its wires to permit the moving of buildings. The expense
of such temporary removal or raising or lowering of wires shall be
paid by the person requesting the same, and the franchisee shall have
the authority to require such payment in advance, except in the case
where the requesting person is the township, in which case no such
payment shall be required. The franchisee shall be given not less
than five calendar days' advance notice to arrange for such temporary
wire changes.
(11)
A franchisee shall have the authority to trim
trees that overhang a street of the township so as to prevent the
branches of such trees from coming in contact with the wires and cables
of the franchisee. At the option of the township, such trimming may
be done by it or under the supervision, direction and expense of the
franchisee.
(12)
A franchisee shall use, with the owner's permission,
existing underground conduits or overhead utility facilities whenever
feasible and may not erect poles in public rights-of-way without the
express permission of the township. Copies of agreements for use of
conduits or other facilities shall be filed with the township as required
by the franchise agreement or upon township request.
(13)
On streets where electrical and telephone utility
wiring is located underground, either at the time of initial construction
of a cable system or at any time thereafter, a franchisee's cable
shall also be located underground at the franchisee's expense. Between
a street and a subscriber's residence, a franchisee's cable must be
located underground if both electrical and telephone utility wiring
are located underground. If either electric or telephone utility wiring
is aerial, a franchisee may install aerial cable except where a property
owner or resident requests underground installation and agrees to
bear the additional cost of such installation over and above the cost
of aerial installation. In the event that the telephone or electric
utilities are reimbursed by the township for the placement of cable
underground or the movement of cable, the franchisee shall be reimbursed
on the same terms and conditions as the telephone or electric utilities.
(14)
All wires, cable lines and other transmission
lines, equipment and structures shall be installed and located to
cause minimum interference with the rights and convenience of property
owners. The township may issue such rules and regulations concerning
the installation and maintenance of a cable system installed in, on
or over the streets as may be consistent with this ordinance and the
franchise agreement. The township shall have the right to install
and maintain free of charge upon the poles owned by the franchisee
any wire and pole fixtures that do not unreasonably interfere with
the cable system operations of the franchisee.
(15)
All safety practices required by law shall be
used during construction, maintenance and repair of a cable system.
A franchisee shall not place facilities, equipment or fixtures where
they will interfere with any gas, electric, telephone, water, sewer
or other utility facilities or obstruct or hinder in any manner the
various utilities serving the residents of the township of their use
of any street or any other public right-of-way.
(16)
Prior to erection of any towers, poles or conduits
or the construction, upgrade or rebuild of a cable communications
system authorized under this ordinance, the franchisee shall first
submit to the township and other designated parties in accordance
with applicable municipal ordinances for approval a concise description
of the facilities proposed to be erected or installed, including engineering
drawings, if required, together with a map and plans indicating the
proposed location of all such facilities. No erection or installation
of any tower, pole, underground conduit or fixture or any rebuilds
or upgrading of the cable communications system shall be commenced
by any person until such approval therefor has been received from
the township.
(17)
Any contractor proposed for work or construction,
installation, operation, maintenance or repair of system equipment
must be properly licensed under laws of the state and all applicable
local ordinances.
(18)
In the event that the use of any part of a cable
system is discontinued for any reason for a continuous period of 12
months or in the event that such system or property has been installed
in any street without complying with the requirements of this ordinance
or a franchise agreement or the franchise has been terminated or canceled
or has expired, the franchisee, within 30 days after written notice
by the township, shall commence removal from the streets of all such
property as the township may require.
(19)
The township may extend the time for the removal
of abandoned facilities for a period not to exceed 180 days.
(20)
In the event of such removal or abandonment,
the franchisee shall restore the area to a condition satisfactory
to the township.
C.
Publicizing proposed construction work. The franchisee
shall publicize significant proposed construction work at least one
week prior to commencement of that work by causing written notice
of such construction work to be delivered to the Township Manager
and by notifying those persons most likely to be affected by the work
in at least two of the following ways: by telephone, in person, by
mail, by distribution of flyers to residences, by publication in local
newspapers or in any other manner reasonably calculated to provide
adequate notice. In addition, before entering onto any person's property,
the franchisee shall make reasonable efforts to contact the property
owner or (in the case of residential property) the resident at least
two days in advance. If the franchisee must enter premises, it must
make reasonable efforts to schedule an appointment at the convenience
of the owner or resident.
The township shall have the right to inspect
and copy upon two weeks' written notice at any time during normal
business hours all books, receipts, maps, plans, financial statements,
contracts, service complaint logs, performance test results, records
of requests for service and other reasonable material of the franchisee
relating to the operation of the franchisee's cable system serving
the township and which are required to perform its regulatory and
compliance monitoring responsibilities under the terms of this ordinance,
a franchise agreement or applicable law.
The franchisee shall, upon request, file the
following reports with the township:
A.
All reports required by the Federal Communications
Commission (FCC), including but not limited to any proof of performance
tests and results, equal employment opportunity (EEO) reports and
all petitions, applications and communications of all types submitted
by franchisee to the FCC, the Security and Exchange Commission (SEC)
or any other federal or state regulatory commission or agency having
jurisdiction over any matter affecting operation of franchisee's system,
shall be submitted to the township.
B.
An annual report setting forth the physical miles
of plant construction and plant in operation during the fiscal year.
Such report shall also contain any revisions to the system as-built
maps filed with the township. The annual report shall be provided
in February.
C.
Construction reports will, at the request of the township,
be sent to the township bimonthly after the franchise is awarded for
any construction undertaken during the term of the franchise until
construction is complete, including any rebuild that may be specified
in the franchise.
D.
Proof-of-performance test results, at the request
of the township, will be supplied to the township when sections of
the system are rebuilt and as required in this ordinance.
E.
Technical tests required by the township as specified
in this ordinance and the franchise agreement, at the request of the
township, will be submitted to the township promptly upon completion
of such tests.
F.
The following financial reports for the franchise
area, as specified in a franchise agreement and submitted annually
to the township 90 days after the end of the franchisee's fiscal year:
(1)
An 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.
(2)
An annual 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.
(3)
A current annual statement of all capital expenditures,
including the cost of construction and of equipment.
(4)
An annual list of officers and members of the
Board of Directors of the franchisee and any affiliates.
G.
The following system and operational reports shall
be submitted annually to the township:
(1)
A report on the system's technical tests and
measurements.
(2)
A report on programs and services offered by
the franchisee, including public, educational, governmental and leased
access channels.
(3)
An annual summary of the previous year's activities,
including but not limited to subscriber totals for each category of
service offered, including the 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.
H.
The franchisee shall, upon request, prepare and furnish
to the township at the time 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 ordinance or the franchise.
A.
The franchisee shall at all times maintain:
(1)
A record of all complaints received and interruptions
or degradation of service experienced for the preceding period prior
to a performance review.
(2)
A full and complete set of plans, records and
as-built maps showing the exact location of all cable communications
system equipment installed or in use in the township, exclusive of
subscriber service drops.
B.
The township may impose reasonable requests for additional
information, records and documents from time to time.
A.
The township may, at its discretion, hold scheduled
performance evaluation sessions annually. All such evaluation sessions
shall be open to the public.
B.
Special evaluation sessions may be held at any time
during the term of the franchise at the request of the township.
C.
All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation. The franchisee
shall notify subscribers of all such evaluation sessions by announcement
on a local origination channel on the system between the hours of
11:00 a.m. and 9:00 p.m. for five consecutive days preceding each
session.
D.
Topics that may be discussed at any scheduled or special
evaluation session may include but not be limited to system performance
and construction, franchisee compliance with this ordinance and the
franchise, customer service and complaint response, subscriber privacy,
services provided, programming offered, service rate structures, if
applicable, franchise fees, penalties, free or discounted services,
applications of new technologies, judicial and FCC filings and line
extensions.
E.
During the review and evaluation by the township,
the franchisee shall fully cooperate with the township and shall provide
such information and documents as the township may need to reasonably
perform its review.
A.
Customer service requirements. Every franchise agreement
shall require a franchisee to comply with all applicable federal,
state and local customer service requirements and shall specify the
minimum customer service requirements the franchisee must satisfy.
Unless otherwise prohibited by law, every franchisee must satisfy
the following requirements unless otherwise specified in its franchise
agreement:
(1)
The franchisee shall maintain an office within
the township that shall be open at least during normal business hours,
which shall include evening hours and some weekend hours.
(2)
The franchisee shall render sufficient service,
make repairs promptly and interrupt service only for good cause and
for the shortest time possible.
(3)
The franchisee shall maintain adequate telephone
lines and personnel to respond to subscriber complaints or inquiries
and schedule service calls in a timely manner.
(4)
The service calls for maintenance or repairs
shall be performed at no charge; provided, however, that if such maintenance
or repair is required as a result of damage caused by a subscriber
or as a result of subscriber's personal equipment, then the franchisee
may charge a reasonable cost for time and material.
B.
Notice of programming changes. The franchisee shall
give at least 30 days' notice to subscribers and the township of any
change in programming decisions or channel realignment.
C.
Reconnection. The franchisee shall restore service
to customers wishing restoration of service, provided that the customer
shall first satisfy any previous obligations owed to the franchisee.
D.
Disconnection. The franchisee shall charge subscribers
to have cable service disconnected only in accordance with the provisions
of the Cable Act. A refund of unused service charges shall be paid
to the customer within 30 days from the date of termination of service.
E.
Downgrade fees. The franchisee shall charge downgrade
fees only in accordance with the provisions of the Cable Act.
F.
Parental control option. The franchisee shall provide
parental control devices to all subscribers who wish to be able to
cut off any objectionable channel or channels of programming from
the cable service entering the subscriber's home. The franchisee shall
charge for this control option only in accordance with the provisions
of the Cable Act.
G.
Township director. The franchisee shall fully fund
annually a full-time township director position to oversee and monitor
cable compliance and complaint resolution. The amounts of payments
for such position shall be made by the township out of franchise fees
owed pursuant to this ordinance.
A.
Rate charge and rate schedule.
(1)
Each franchisee shall, in accordance with the
provisions of the Cable Act, provide information as to its initial
monthly rates, installation charges and all other charges, including
but not limited to equipment fees, late fees and other administrative
charges, if any.
(2)
The franchisee shall give subscribers at least
30 days' notice of its intention to change monthly rates, equipment
charges and installation charges by mailing notices thereof to each
of the current subscribers to whom such charges will apply. The franchisee
shall give the Township Manager or his/her designee 30 days' advance
notice of any rate change.
(3)
The franchisee shall not, as to rates, charges,
services or facilities, make or grant any undue privilege or advantage
to any party nor subject any party to undue prejudice or disadvantage,
provided that the franchisee may establish reasonable classifications
of customers. In accordance with Section 623(e) of the Cable Act,
47 U.S.C. § 543(e), nothing in this ordinance prohibits
the reduction or waiver of charges in connection with temporary promotional
campaigns or providing a senior citizen discount, provided that the
same waivers are provided to all similarly situated customers. Moreover,
nothing shall prohibit franchisee from entering into service arrangements
(with discounts and special terms) with large residential communities
or dwellings (including apartments, condominiums and other dwelling
units), hotels/motels and mobile home parks located within the township.
B.
Local regulatory framework.
(1)
The township shall regulate all rates and charges
to the extent it is allowed to do so by law, provided that the township
is certified to regulate rates pursuant to the Cable Act. No rate
or charge may be imposed without prior approval to the township except
such rates and charges that the township is prohibited from regulating.
Subject to the foregoing, any change made without prior approval is
an illegal change, and the franchisee is prohibited from requesting
or requiring a subscriber to pay an illegal rate as a condition of
providing service.
(2)
The township may adopt such regulations, procedures
and standards as it deems necessary to implement rate regulation and
may regulate rates by amendment to this ordinance, by a separate resolution
or ordinance, by amendment to a franchise agreement or in any other
lawful manner, provided, however, that nothing contained in this section
shall conflict with the provisions of Section 623 of the Cable Act,
47 U.S.C. § 543, and rules promulgated by the FCC thereunder.
A.
Finding. The township finds that the streets and public
rights-of-way of the county, state and township to be used by a franchisee
for the operation of a cable television system are valuable public
property acquired and maintained by the county, state and township
at great expense to the taxpayers. The township further finds that
the grant of a franchise to use streets and public rights-of-way is
a valuable property right without which a franchisee would be required
to invest substantial capital.
B.
Payment to township.
(1)
The township shall be paid a franchise fee in
an amount no less than 5% of its gross annual revenues; in the event
that the maximum amount permitted under applicable law is greater
than 5%, then the township reserves the right to reopen negotiations
with the franchisee to address the greater amount and any increase
in the franchise fee to the maximum allow by law.
(2)
To the extent not inconsistent with applicable
law, the franchise fee is in addition to all other taxes and payments
that the franchisee may be required to pay under any federal, state
or local law and to any other tax, fee or assessment imposed by utilities
and cable operators for use of their services, facilities or equipment.
(3)
To the extent not inconsistent with applicable
law, payment of the franchise fee shall not be considered in the nature
of a tax.
(4)
No acceptance of any payment by the township
shall be construed as a release or an accord and satisfaction of any
claim the township may have for further or additional sums payable
as a franchise fee under this ordinance or for the performance of
any other obligation of the franchisee.
(5)
In the event that any franchise fee payment
or recomputation amount is not made on or before the date specified
herein, the franchisee shall pay additional compensation and interest
charges computed from such due date at an annual rate equal to the
commercial prime interest rate of the township's primary depository
bank during the period such unpaid amount is owed.
(6)
The franchise fee and any other costs assessed
by the township against a franchisee shall be paid quarterly to the
township and shall commence as of the effective date of the franchise.
The township shall be furnished at the time of each payment with a
statement certified by the franchisee's chief financial officer or
an independent certified public accountant reflecting the total amount
of quarterly gross revenues for the payment period. Quarterly payments
shall be made to the township no later than 45 days following the
end of each calendar quarter. Quarter computation dates are the last
days of the months of March, June, September and December. The township
may require in a franchise agreement that an annual statement of gross
revenues shall be furnished to the township by an independent, certified
public accountant and that the franchisee shall provide an annual
complete audit statement for each calendar year within 90 days from
the end of that calendar year.
(7)
The township shall have the right to inspect
and copy the franchisee's records as is necessary to verify the accuracy
of the franchisee's franchise fee payments and other possible levied
taxes and the rights to audit and to recompute any amounts determined
to be payable under this ordinance for a period of four years from
the date of payment. Audits shall be at the expense of the township
unless the audit discloses an underpayment of greater that 5% of the
entire amount determined to be payable for the period being audited,
in which case the costs of the audit shall be borne by the franchisee
as a cost incidental to the enforcement of the franchise. Any additional
amounts due to the township as a result of the audit shall be paid
within 30 days following written notice to the franchisee by the township
of the underpayment, which notice shall include a copy of the audit
report, unless written notice of disagreement is filed by the franchisee
with the township within such time period. In the case of a dispute,
the issue shall be resolved through binding arbitration in accordance
with the procedures of the American Arbitration Association.
(8)
The township may require in a franchise agreement
that the franchisee shall maintain its fiscal and financial records
in such a manner as to enable the Board to determine the cost of assets
of the franchisee which are used in providing cable services within
the township.
A.
Insurance required. A franchisee shall maintain, and
by its acceptance of a franchise specifically agrees that it will
maintain, throughout the entire length of the franchise period, at
least the following liability insurance coverage insuring the township
and the franchisee: worker's compensation and employer liability insurance
to meet all requirements of Pennsylvania law and comprehensive general
liability insurance with respect to the construction, operation and
maintenance of the cable system and the conduct of franchisee's business
in the township, in the minimum amounts of:
B.
Qualifications of sureties. All insurance policies
shall be with sureties qualified to do business in the Commonwealth
of Pennsylvania; shall be with sureties with an A-1 or better rating
of insurance by Best's Key Rating Guide, Property/Casualty Edition;
and in a form approved by the Township Manager.
C.
Policies available for review. All insurance policies
shall be available for review by the township, and a franchisee shall
keep on file with the township certificates of insurance.
D.
Additional insureds; prior notice of policy cancellation.
The township may require in a franchise agreement that all insurance
policies shall name the township, its officers, boards, commissions,
commissioners, agents and employees as additional insureds and shall
further provide that any cancellation or reduction in coverage shall
not be effective unless 30 days' prior written notice thereof has
been given to the township. A franchisee shall not cancel any required
insurance policy without submission of proof that the franchisee has
obtained alternative insurance satisfactory to the township which
complies with this ordinance.
E.
Indemnification. The township may require in a franchise
agreement that a franchisee shall, at its sole cost and expense, indemnify,
hold harmless and defend the township, its officials, boards, commissions,
commissioners, agents and employees against any and all claims, suits,
causes of action, proceedings and judgments for damages or equitable
relief arising out of the construction, maintenance or operation of
its cable system, the conduct of the franchisee's business in the
township or in any way arising out of the franchisee's enjoyment or
exercise of a franchise granted hereunder, except that a franchisee
shall not indemnify, hold harmless and defend the township in connection
with any negligent or malicious act or omission attributable to the
township. This provision includes, but is not limited to, the township's
reasonable attorneys' fees incurred in defending against any such
claim, suit or proceeding and claims arising out of copyright infringements
or a failure by the franchisee to secure consents from the owners,
authorized distributors or franchisees of programs to be delivered
by the cable system.
F.
Indemnification for Cable Act claims. The township
may require in a franchise agreement that a franchisee shall, at its
sole cost and expense, fully indemnify, defend and hold harmless the
township and, in its capacity as such, the officers, agents and employees
thereof from and against any and all claims, suits, actions, liability
and judgments for damages or otherwise subject to Section 638 of the
Cable Act, 47 U.S.C. § 558, arising out of or alleged to
arise out of the installation, construction, operation or maintenance
of its system, including but not limited to any claim against the
franchisee for invasion of the right of privacy, defamation of any
person, firm or corporation or the violation or infringement of any
copyright, trademark, trade name, service mark or patent or of any
other right of any person, firm or corporation. This indemnity does
not apply to programming carried on any channel set aside for public,
educational or government use or channels leased pursuant to 47 U.S.C.
§ 532, unless the franchisee was in any respect engaged
in determining the editorial content of the program or adopts a policy
of prescreening programming for the purported purpose of banning indecent
or obscene programming. Nothing herein shall prohibit the township
from participating in the defense of any litigation by its own counsel
and obtaining indemnification for the costs associated therewith.
G.
No limit of liability. Neither the provisions of this
section nor any damages recovered by the township shall be construed
to limit the liability of the franchisee for damages under any franchise
issued hereunder.
A.
Security deposit. A franchise agreement may provide
that, prior to the franchise's becoming effective, the franchisee
shall post with the township a cash security deposit to be used as
a security fund to ensure the franchisee's faithful performance of
and compliance with all provisions of this ordinance, the franchise
agreement and other applicable law and compliance with all orders,
permits and directions of the township and the payment by the franchisee
of any claims, liens, fees or taxes due the township which arise by
reason of the construction, operation or maintenance of the system.
The amount of the security fund shall be $20,000.
B.
Surety bond. In any franchise agreement entered into
before the effective date of this ordinance, the township and franchisee
may agree that the a franchisee may, in lieu of the security fund,
file and maintain with the township a bond with an acceptable surety
in the amount of $100,000 to indemnify the township against any losses
it may suffer in the event that the franchisee fails to comply with
one or more of the provisions of its franchise. Said bond shall be
obtained at the sole expense of the franchisee and remain in effect
for the full term of the franchise plus an additional six months thereafter.
The franchisee and its surety shall be jointly and severally liable
under the terms of the bond for any damages or loss suffered by the
township as a result of the franchisee's nonperformance, including
the full amount of any compensation, indemnification or cost of removal
of any property of the franchisee in the event of default, and a reasonable
allowance for attorneys' fees and costs, up to the full amount of
the bond. The bond shall provide for 30 days' prior written notice
to the township of any intention on the part of the franchisee to
cancel, fail to renew or otherwise materially alter its terms. Neither
the filing of a surety bond with the township nor the receipt of any
damages recovered by the township thereunder shall be construed to
excuse faithful performance by the franchisee or limit the liability
of the franchisee under the terms of its franchise for damages, either
to the full amount of the bond or otherwise.
C.
Security fund in addition to all other township rights.
The rights reserved to the township with respect to any security fund
or an indemnity bond are in addition to all other rights of the township,
whether reserved by this ordinance or authorized by other law or the
franchise agreement, and no action, proceeding or exercise of a right
with respect to such security fund or indemnity bond will affect any
other right the township may have.
D.
Procedures. The franchise agreement shall provide
for the procedures to be followed with respect to drawing upon the
security fund and surety bond.
A.
Establishment of performance bond. Prior to any cable
system construction, upgrade or other work in the streets, a franchisee
shall establish in the township's favor a performance bond in an amount
specified in the franchise agreement or other authorization as necessary
to ensure the franchisee's faithful performance of the construction,
upgrade or other work. The amount of such performance bond shall not
exceed $100,000.
B.
Recovery under performance bond. In the event that a franchisee subject to such a performance bond fails to complete the cable system construction, upgrade or other work in the streets in a safe, timely and competent manner in accord with the material provisions of the franchise agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the township as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the franchisee or the cost of completing or repairing the system construction, upgrade or other work in the streets, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The township may also recover against the bond any amount recoverable against the security fund or surety bond where such amount exceeds that available under the security fund or surety bond. Before seeking recovery under this Subsection B, the township shall provide to franchisee reasonable notice and opportunity to cure.
C.
Changes to amount of performance bond. The franchise
agreement shall specify that upon completion of the system construction,
upgrade or other work in the streets and payment of all construction
obligations of the cable system to the satisfaction of the township,
the township shall eliminate the bond or reduce its amount after a
time appropriate to determine whether the work performed was satisfactory,
which time shall be established considering the nature of the work
performed. The township may subsequently require a new bond or an
increase in the bond amount for any subsequent construction, upgrade
or other work in the streets. In any event, the total amount of the
bond shall equal 10% of the cost of the work, but shall not exceed
$100,000.
D.
Qualifications of sureties. The performance bond shall
be issued by a surety with an A-1 or better rating of insurance in
Best's Key Rating Guide, Property/Casualty Edition; shall be subject
to the approval of the township; and shall contain the following endorsement:
"This bond may not be canceled, or allowed to lapse, until 60 days
after receipt by the township, by certified mail, return receipt requested,
of a written notice from the issuer of the bond of intent to cancel
or not to renew."
E.
Performance bond in addition to all other township
rights. The rights reserved by the township with respect to any performance
bond established pursuant to this ordinance are in addition to all
other rights and remedies the township may have under this ordinance,
the franchise agreement or at law or equity.
A.
Available remedies. In addition to any other remedies
available at law or equity, the township may apply any one or a combination
of the following remedies in the event that a franchisee violates
this ordinance, its franchise agreement or applicable state or federal
law:
(1)
Impose liquidated damages in such amount, whether
on a per-diem, per-incident or other measure of violation, as provided
in the franchise agreement. Payment of liquidated damages by the franchisee
will not relieve the franchisee of its obligation to comply with the
franchise agreement and the requirements of this ordinance.
(2)
Revoke the franchise pursuant to the procedures
specified in this ordinance.
(3)
In addition to or instead of any other remedy,
the township may seek legal or equitable relief from any court of
competent jurisdiction.
(4)
Impose penalties available under state and local
law for violation of township ordinances.
B.
Determination of appropriate remedies. In determining
which remedy or remedies are appropriate, the township shall take
into consideration the nature of the violation, the person or persons
bearing the impact of the violation, the nature of the remedy required
in order to prevent further violations and such other matters as the
township determines are appropriate to the public interest.
A.
Township approval required. No transfer shall occur
without prior approval of the township.
B.
Application. An application for a transfer shall provide complete information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee and on the potential impact of the transfer on subscriber rates and service. At a minimum, the information required in § A186-11C of this ordinance shall be provided with respect to the proposed transferee.
C.
Determination by township. In making a determination
as to whether to grant, deny or grant subject to conditions an application
for a transfer of a franchise (which determination the township shall
make in accordance with Section 617 of the Cable Act, 47 U.S.C. § 537),
the township shall consider the legal, financial and technical qualifications
of the transferee to operate the system; whether the incumbent cable
operator is in compliance with its franchise agreement and this ordinance
and, if not, the proposed transferee's commitment to cure such noncompliance;
whether the transferee owns or controls any other cable system in
the township or whether operation by the transferee may eliminate
or reduce competition in the delivery of cable service in the township;
and whether operation by the transferee or approval of the transfer
would adversely affect subscribers, the township's interest under
this ordinance, the franchise agreement or other applicable law or
make it less likely that the future cable-related needs and interests
of the community would be satisfied at a reasonable cost. The township
reserves the right to review the purchase price of any transfer or
assignment of a cable system. Any negotiated sale value which the
township deems unreasonable will not be considered in the rate base
for any subsequent request for rate increases, if permitted by applicable
law.
D.
Transferee's agreement. No application for a transfer
of a franchise shall be granted unless the transferee agrees in writing
that it will abide by and accept all terms of this ordinance and the
franchise agreement and that it will assume the obligations and liabilities,
known and unknown, of the previous franchisee under this ordinance
and the franchise agreement.
E.
Approval does not constitute waiver. Subject to applicable
statutes of limitations, approval by the township of a transfer of
a franchise does not constitute a waiver or release of any of the
rights of the township under this ordinance or the franchise agreement
pertaining to a franchisee's operation of a cable system under this
ordinance or a franchise agreement and before the date of the transfer.
A.
Basis for revocation. A franchise may be revoked by the township for a franchisee's failure to construct, operate or maintain the cable system as required by this ordinance or the franchise agreement, for defrauding or attempting to defraud the township or subscribers, if the franchise is declared bankrupt, or for any other material violation of this ordinance or material breach of the franchise agreement. To invoke the provisions of this section, the township shall give the franchisee written notice via certified mail of the default in its performance. If within 30 calendar days following such written notice from the township to the franchisee the franchisee has not taken corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the township, the township may give written notice via certified mail to the franchisee of its intent to revoke the franchise, stating its reasons, provided that no opportunity to cure shall be provided where the franchisee has defrauded or attempted to defraud the township or its subscribers or in the event that the franchisee is declared bankrupt. In the case of a fraud or attempted fraud, the franchise may be revoked after the hearing required under Subsection B; revocation for bankruptcy shall be governed by Subsection C.
B.
Procedure. Prior to revoking a franchise, the township
shall hold a public hearing, upon 30 calendar days' notice, at which
time the franchisee and the public shall be given an opportunity to
be heard. Following the public hearing, the township may determine
whether to revoke the franchise based on the information presented
at the hearing and other information of record. If the township determines
to revoke a franchise, it shall issue a written decision setting forth
the reasons for its decision. A copy of such decision shall be transmitted
to the franchisee.
C.
Revocation after bankruptcy. Any franchise may, at
the option of the township following a public hearing before the township,
be revoked 120 calendar days after an assignment for the benefit of
creditors or the appointment of a receiver or trustee to take over
the business of the franchisee, whether in a receivership, reorganization,
bankruptcy assignment for the benefit of creditors or other action
or proceeding, unless within that one-hundred-twenty-day period:
(1)
Such assignment, receivership or trusteeship
has been vacated.
(2)
Such assignee, receiver or trustee has fully complied with the terms and conditions of this ordinance and the franchise agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this ordinance and the franchise agreement and such other conditions as may be established or as are required pursuant to § A186-30.
D.
Revocation after foreclosure. In the event of foreclosure
or other judicial sale of any of the facilities, equipment or property
of a franchisee, the township may revoke the franchise, following
a public hearing before the township, by serving notice on the franchisee
and the successful bidder at the sale, in which event the franchise
and all rights and privileges of the franchise will be revoked and
will terminate 30 calendar days after serving such notice, unless:
(1)
The township has approved the transfer of the
franchise to the successful bidder.
E.
Rights on revocation. If the township revokes a franchise
or if for any other reason a franchisee abandons, terminates or fails
to operate or maintain service to its subscribers, the following procedures
and rights are effective:
(1)
The township may require the former franchisee
to remove its facilities and equipment at the former franchisee's
expense. If the former franchisee fails to do so within a reasonable
period of time, the township may have the removal done at the former
franchisee's and/or surety's expense.
(2)
In the event of revocation, the township, by
resolution, may acquire ownership of the cable system at an equitable
price.
(3)
If a cable system is abandoned by a franchisee
or the franchisee fails to operate or maintain service to its subscribers
or otherwise terminates the franchise, the ownership of all portions
of the cable system in public rights-of-way shall revert to the township,
and the township may sell, assign or transfer all or part of the assets
of the system.
A.
Discriminatory practices prohibited. The franchisee
shall not deny service, deny access or otherwise discriminate against
subscribers, programmers or residents of the township on the basis
of race, color, religion, national origin, sex or age. Notwithstanding
the foregoing, the franchisee may offer price discounts to senior
citizens. Moreover, nothing shall prohibit the franchisee from entering
into service agreements (with discounts and special terms), including
apartments, condominiums and other dwelling units, hotels/motels and
mobile home parks located within the township. The franchisee shall
comply at all times with all applicable federal, state and township
laws and all executive and administrative orders relating to nondiscrimination.
B.
Equal employment opportunity. A franchisee shall not
refuse to employ, discharge from employment or discriminate against
any person in compensation or in terms, conditions or privileges of
employment because of race, color, religion, national origin, sex
or age. The franchisee shall comply with federal, state and local
laws and regulations governing equal employment opportunities, as
the same may be from time to time amended.
C.
Subscriber privacy. A franchisee shall at all times
protect the privacy of all subscribers pursuant to the provisions
of Section 631 of the Cable Act, 47 U.S.C. § 551. A franchisee
shall not condition subscriber service on the subscriber's grant of
permission to disclose information which, pursuant to federal or state
law, cannot be disclosed without the subscriber's explicit consent.
A.
Compliance with laws. The franchisee and the township
shall comply with all applicable federal, state and township laws
and regulations as they become effective, unless otherwise stated.
B.
Severability. If any term, condition or provision
of this ordinance shall to any extent be held to be invalid or unenforceable,
the remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision which had been held invalid is no longer
invalid, said provision shall thereupon return to full force and effect
without further action by the township and shall thereafter be binding
on the franchisee and the township.
C.
Emergency use. Upon request of the township, the franchisee
shall, at its sole expense, make available systems and related facilities
to the township for emergency use during any emergency or disaster.
D.
Captions. Captions and headings of this ordinance
are for convenience and reference purposes only and shall not affect
in any way the meaning and interpretation of any provisions of this
ordinance.
E.
Calculation of time. Unless otherwise indicated, when
the performance or doing of any act, duty, matter, payment or thing
is required hereunder and a period of time or duration for the fulfillment
of doing thereof is prescribed and is fixed herein, the time shall
be computed so as to exclude the first and include the last day of
the prescribed or fixed period of duration time. When the last day
of the period falls on a Saturday, Sunday or a legal holiday, that
day shall be omitted from the computation.
A.
Publication; effective date. All franchises shall
be signed by the President of the Board and attested to by the Township
Secretary. The franchise shall be published in accordance with the
requirements of the township and state law and shall take effect after
it has been accepted by the franchisee and the franchisee and the
township have signed a franchise agreement and satisfied all conditions
precedent set forth therein.
B.
Franchisee bound. Upon acceptance of a franchise,
the franchisee shall be bound by all terms and conditions contained
herein, in the franchise agreement and in its application, to the
extent incorporated in the franchise agreement.