[HISTORY: Adopted by the Borough Council of the Borough of
Eddystone 4-12-1999 by Ord. No. 579, approved 4-12-1999. Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch.
256.
A. In consideration of the faithful performance and observance of the
conditions and reservations hereinafter specified, the nonexclusive
right (hereinafter referred to as "franchise") is hereby granted to
a franchisee (hereinafter referred to as "company") to construct,
own, operate and maintain a community antenna cable television system
and 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, bridges and other
public places in the Borough of Eddystone, Delaware County, Pennsylvania,
and subsequent additions thereto, 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, the Commonwealth of Pennsylvania and the ordinances and regulations
of the Borough of Eddystone, now in effect or hereafter enacted. The
duration of the rights, privileges and authorities hereby granted
shall be 10 years from the date of acceptance of this ordinance by
the company, provided that the company shall have the option of extending
this franchise for an additional term of five years unless the Borough
gives the company not less than one year's written notice of
the intent not to so renew this franchise.
B. During the six-month period which begins with the 36th month before
the franchise expiration, the Borough may on its own initiative, and
shall at the request of the company, commence proceedings which will
afford the public appropriate notice and participation for the purpose
of identifying the future cable-related community needs and interest,
and reviewing the company's performance under the franchise.
Upon completion of the above proceeding, the company may submit a
proposal for renewal.
C. A four-month period shall be allowed for determining the company's
eligibility for franchise renewal. The Committee shall consider the
company's annual reports to the Borough, the Federal Communications
Commission and the commonwealth, if such is required, and these shall
be considered in light of cable television industry performance on
a national basis in respect to technical developments and performance,
programming, cost of service and the particular requirements set out
in this ordinance. After a public hearing, duly advertised, the Committee
shall make recommendation, in writing, to the Borough for renewal
of the franchise without change in contract, renewal with amendment(s)
to the contract or termination of this franchise. In the latter instance,
the specific reasons for nonrenewal of the franchise are to be stated.
There is hereby granted the further right, privilege and authority
to the company to lease, rent, subscribe to service or in any other
manner obtain the use of towers, poles, lines, cable, facilities,
services, licenses and franchises within the limits of the Borough
of Eddystone, Pennsylvania, including the Bell Telephone Company of
Pennsylvania and the Philadelphia Electric Company, and to use such
towers, poles, lines, cables and other equipment and facilities, subject
to all existing and future ordinances and regulations of the Borough.
The poles used for the company's distribution system shall be
those erected and maintained by the telephone or electric companies
when and where practicable, provided that mutually satisfactory rental
agreements can be entered into with said companies.
A. The company shall have the right and privilege to construct, erect,
operate and maintain in, upon, along, above, across, over and under
the streets such poles, wires, cable, conductors, ducts, conduit,
vaults, manholes, amplifiers, appliances, attachments and other property
as may be necessary and appurtenant to its system, provided that individual
permits are issued for the location of such poles subject to the approval
of the affected homeowner and the Borough and, in addition, so to
use, operate and provide similar properties rented or leased from
other persons, firms or corporations for such purpose.
B. The company's rights and privileges shall be subordinated to
any prior lawful use of occupancy of the streets or other public property
and shall not be so used as to interfere with existing improvements
or with new improvements this Borough may deem proper to make or as
to hinder or obstruct the free use of the streets, alleys, bridges
or other public property. In the event that any equipment or facilities
of the company shall interfere with any such improvement existing
or intended to be made by the Borough the company shall, upon notice
from the Borough, forthwith relocate said equipment and facilities
at the company's expense so as to eliminate said interference.
C. Construction and maintenance of the transmission distribution system
shall be in accordance with the provisions of the National Electrical
Safety Code, 1993 (NED-70), or any amendments or revisions thereof
and in compliance with any applicable rules, regulations or orders
now in effect or hereafter issued by any federal or state commission
or any other public authority having jurisdiction.
D. All installments of equipment shall be durable or of a permanent
nature and installed in accordance with good engineering practice
as outlined by the National Bureau of Standards, American Institute
of Electrical Engineers and American Society of Mechanical Engineers.
The company shall comply with all Borough regulations, ordinances
and state and federal laws now existing or hereinafter enacted so
as not to interfere with the right of the public or individual property
owner and so as not to unduly interfere with the travel and use of
public places by the public during the construction, repair or removal
thereof.
E. In the construction, conduct, maintenance and operation of its business,
the company shall comply with all requirements of Borough ordinances,
resolutions, local laws, rules, regulations and specifications heretofore
or hereafter enacted or established, including but not limited to
those concerning street work, street excavation, use and removal and
relocation of property within a street.
F. The Borough reserves the right to buy back the franchise system at
a fair market value upon expiration of the contract.
This franchise authorizes only the installation and operation
of a community antenna television system and does not take the place
of any other franchise, license or permit which may be required by
law or ordinance or regulation.
In all areas of the Borough where cables, wires or other like
facilities of public utilities are placed underground, the company
shall place its cables, wires or other like facilities underground.
The company shall grant to the Borough, free of expense, joint
use of any and all poles owned by it for any proper Borough purpose,
provided that it may be done without interfering with the free use
and enjoyment of the company's own facilities.
In case of any emergency or disaster, the company shall, upon
request of the Borough or its civil defense authority, make its facilities
and personnel available to the Borough or said authority during the
emergency or disaster period without charge.
In lieu of maintaining an office and studio in the Borough,
the company shall, if requested by the Borough, install a television
monitor and state-of-the-art character generator and VCR in the municipal
building and shall maintain the necessary equipment to provide exclusive
use of Channel 10 for Borough residents only. The company shall also
permit the use of Suburban's Wallingford studio by Borough residents.
The company shall not sell, repair and/or rent television sets
and VCR's.
A. The company shall supply to the customer's television set a
picture that meets all current and future standards as required by
the FCC. If no standards are set by the FCC, the company will deliver
picture quality to all customers that meets all standards as set within
the cable industry and is in compliance with the technical standards
set by the FCC up to 1994.
B. The company shall transmit signals that have the proper signal quality
through cable that is properly shielded to prevent signal leakage;
comply with all FCC requirements that pertain to signal leakage performance
criteria; and provide a timely response and repair at no charge for
all complaints from noncable customers who have impaired picture that
is caused by cable transmission.
C. The company shall provide same-day service response, on any normal
working day, for all complaints and requests for adjustments received
before 12:00 noon. Calls received after 12:00 noon must be responded
to within 24 hours. After 12:00 noon on Saturdays or Sundays and holidays,
customers with problems must call back by 12:00 noon the next working
day. Twenty-four-hour emergency service will always be available for
the following: loss of channels for the entire cable system, downed
lines blocking streets or sidewalks, cable causing a dangerous situation
to pedestrians or traffic, or when five or more calls come from the
Borough due to picture loss or impaired picture quality. Upon failure
to remedy a loss of service attributable to the cable system within
24 hours after a complaint, if requested, the company shall credit
1/30 of the regular monthly charge to the subscriber for each 24 hours
or fraction thereof until service is restored.
D. The company shall have the work done between the hours of 7:00 am
and 12:00 noon, whenever possible, anytime there is a loss or interruption
of service to more than 100 subscribers caused by the company. Whenever
the company has a planned outage due to maintenance of the system,
for a period of 24 hours or more, the company shall credit to the
subscriber fee. The requirements for maintenance of equipment contained
in this provision shall not apply to the subscriber's television
set.
E. The company shall keep a log and file a copy thereof at the end of
each month with the Borough listing by category all complaints and
trouble calls received, the number of second or subsequent calls on
the same complaint, the remedial action taken and the period of time
required to satisfy each reported complaint. The company shall file
a list of credits quarterly with the Borough, when available.
F. The company shall be required to interconnect its system with any
other broadband communications facility operating in a reasonably
nearby territory, such interconnection to be made within 60 days of
a request by the Borough. For good cause shown, the company may request
and the Borough may grant reasonable extension of time to comply with
this requirement.
G. The company shall have a representative attend meetings of the Borough
on cable television or any other meetings when requested.
A. The company shall pay to the Borough 5% of the annual gross receipts.
"Gross receipts" shall mean any and all compensation and other considerations
in any form paid by and due or owing by subscribers to the company
and any lessee of the company from the sale of its services and facilities
to said subscriber or lessee of the company within the limits of the
Borough. All installation charges, reconnection charges, service charges
and charges for inspection, repair or modification of installments,
all advertising revenue, all sales commissions from all present and
future sales channels and any revenues generated from future technologies
shall be included in said sum.
B. While the company is in the process of renewing its franchises in the various municipalities in the County of Delaware, should any other municipality in said county receive a better fee package in any franchising agreement than that set forth in Subsection
A above, the Borough shall automatically be entitled to receive, and the company shall be obligated to pay, the higher fee upon adoption by the Borough of an ordinance with the higher fee set forth therein.
C. The company shall provide and file with the Borough annual certified
audited financial statements. The company shall also make available
to the Borough, upon request, all documents necessary for the Borough
to determine whether or not the company is fulfilling its obligations,
to include but not limited to maps, plans, a schedule of proposed
installation, insurance policies, performance bonds, etc., and the
company shall notify the Borough to any material alteration or change
of coverage within seven days to 30 days in advance of said change.
D. Within the second year of this franchise term, the Borough shall
be permitted to conduct an audit of the company's records to
ascertain whether the company is in compliance with the financial
terms and provisions of this ordinance. The company shall be responsible
for the payment of the Borough's auditor reasonable fees.
E. The company is required to file monthly reports including but not
limited to the franchise fee payment worksheet (to be provided by
the Borough) within 15 days of month's end which present earned
revenue. On a monthly basis, the company shall pay 100% of the fees
to the Borough. The Borough Secretary or his/her representative shall
have the right to examine or have examined the books and records of
the company to assure compliance with the terms and provisions of
this ordinance, such cost to be paid by the company. Noncompliance
with the aforementioned will result in a penalty to 10% on moneys
due for that month.
F. The company shall keep on file with the Borough a current list of
its stockholders, bondholders, owners and partners and the holdings
thereof.
This franchise right is a privilege to be held in personal trust
by the original grantee. It cannot be transferred, leased, assigned
or disposed of, as a whole or in part, either by forced sale, merger,
consolidation or otherwise, without first offering to transfer, lease,
assign or dispose of in whole or in part to the Borough by giving
written notice to the Borough. The Borough shall have 120 days to
accept said offer under the same terms and conditions as the offer
received by the company. In the event that the Borough does not accept
the offer, the franchise cannot be transferred, leased, assigned or
disposed of, as a whole or in part, either by forced sale, merger,
consolidation or otherwise, without the prior consent of the Borough
expressed by this ordinance, and then only under such conditions as
may therein be prescribed.
Upon termination of service to any subscriber, the company shall
promptly:
A. Remove all personal property and/or equipment, including but not
limited to converters and remote controls.
B. Disconnect cable or wiring into the subscriber's premises either
at the point of entry or at a feed point from cable tap.
C. Refund payment made in advance for service. The refund of advance
payment should be calculated based upon an effective termination date,
which shall be the date which occurs first that is the actual date
of termination of service into the premises, or seven days after a
request is made by customer to discontinue service. If the company
has the capability of discontinuing service without visiting the premises,
then the effective date of termination shall be the day the customer
requests termination of service.
D. Return security deposits, if any, upon the customer returning equipment
for which a deposit is applicable.
E. Submit a final statement of account to the customer within 45 days
of voluntary termination of service. The company shall not impose
a charge or fee to the customer who requests termination of service.
The company shall not be required to remove cable or wiring from either
the inside or outside of subscriber premises. However, upon request
from the subscriber, the company must remove aerial cable or wiring
from only the exterior of the customer's property.
At the expiration of the term for which this franchise is granted
or upon its termination and cancellation as provided for herein, the
Borough shall have the right to require the company to remove, at
its own expense, all portions of the system from all public ways within
the Borough.
The company will file with the Borough true and accurate copies
of maps and schedules of any major construction.
A. In addition to all other rights and powers pertaining to the Borough
by virtue of this ordinance or otherwise, the Borough reserves the
right to terminate and cancel the franchise hereby granted and all
rights and privileges of the company hereunder in the event that the
company:
(1)
Violates any material provision of this ordinance or any rule,
order or determination of the Borough or Borough Council made pursuant
to this ordinance.
(2)
Becomes insolvent or unable or unwilling to pay its debts or
is adjusted as bankrupt.
(3)
Violates any federal or Pennsylvania law or regulation.
B. Such termination and cancellation shall be by ordinance duly adopted
after 30 days' notice to the company and shall in no way affect
any of the Borough's rights under this franchise or any provision
or law.
This ordinance and the rights granted to the company shall become
effective upon execution of a contract between Eddystone Borough and
the franchisee, binding both parties to abide by all conditions of
this ordinance.
A. The company shall pay and by its acceptance of this franchise the
company specifically agrees that it will pay all damages and penalties
which the Borough may legally be required to pay as a result to granting
the franchise. These damages or penalties shall include but shall
not be limited to damages arising out of the installation, operation
or maintenance of the system authorized herein, whether or not any
act of omission complained of is authorized, allowed or prohibited
by this ordinance.
B. The company shall pay and by its acceptance of this franchise specifically agrees that it will pay all expenses incurred by the Borough in defending itself with regard to all damages and penalties mentioned in Subsection
A above. These expenses shall include all out-of-pocket expenses such as attorney's fees and shall also include the reasonable value of any services tendered by the Borough Solicitor or his assistants or any employee of the Borough.
C. The company shall maintain and by its acceptance of this franchise specifically agrees that it will maintain throughout the terms of this franchise liability insurance insuring the Borough and the company with regard to all damages mentioned in Subsection
A above in the minimum amounts as follows:
(1)
The company shall provide evidence of workmen's compensation
and vehicle insurance from a carrier with an A.M. Best rating of "A"
or better.
(2)
Comprehensive general liability insurance shall be written on
an occurrence basis with a combined single limit of no less than $1,000,000
for bodily injury, property damage and personal injury.
D. The company shall maintain and by its acceptance of this franchise
specifically agrees that it will maintain throughout the term of this
franchise a faithful performance bond running to the Borough in the
penal sum of $100,000, conditioned that the company shall well and
truly observe, fulfill and perform each term and condition of this
ordinance and that, in case of any breach of condition of the bond,
the amount thereof by the Borough for all damages resulting from the
failure of the company to well and faithfully observe and perform
any provision of this ordinance.
E. The insurance policy and bond obtained by the company in compliance
with this section must be written by an insurance company with an
A.M. Best rating of "A" or better and shall be approved by the Borough
Council, and such insurance policy and bond, along with written evidence
of the payment of required premiums, shall be filed and maintained
with the Borough Secretary during the term of this ordinance.
F. All expenses of the above-noted insurance and bond shall be paid
by the company.
The company shall:
A. Provide each public, private and parochial school, fire station,
ambulance corps building, public library and Borough building, and
such public auditoriums and institutions as are requested by the Borough,
with a single drop and basic service without charge. Additional drops
and service will be charged to the facility by the company at cost
to the company of time and material only.
B. Comply with the present and future rules and regulations of the Federal
Communications Commission in connection with and relating to the operation
of its system.
C. Provide an education access channel. The company shall maintain one
specially designated channel for use by the Ridley School District
and provide at no cost a character generator for its exclusive use.
D. Local government access channel. The company, if requested by the
Borough, shall maintain one specifically designated channel for Eddystone
Borough municipal use at the place the Borough may designate and provide
at no cost a character generator and television monitor for their
exclusive use.
E. Public-access/leased-access channel. The company shall maintain at
least one specifically designated, noncommercial public-access/leased-access
channel available on a first-come, nondiscriminatory basis. In addition,
other portions of its nonbroadcast bandwidth, including unused portions
of the specially designated channels, shall be available for leased
uses. On at least one of the public-access/leased channels, priority
shall be given to part-time users.
F. Maintain and deliver a minimum of 43 channels and will continue to
increase the amount of channels available to its customers as the
technology and demand increases. The company shall meet and/or exceed
cable industry standards as it relates to the number of channels carried.
At no time shall the company monitor the viewing habits of its customers
without the express permission of said customers. Pursuant to the
Cable Communications Policy Act of 1984 and the Cable Television Consumer
Protection and Competition Act of 1992, all personally identifiable
information is used solely for the normal business purpose of offering
and rendering cable television service to the customer. The company
will not disclose personally identifiable information without permission
of the customer.
G. Carry on its system the signals of all stations significantly viewed
in Delaware County, Pennsylvania, these to include all local network
and education VHF stations and local UHF stations, and, in addition,
no less than two distant commercial stations.
H. Conduct program origination cable casting, in addition to any automated
services.
I. Provide, for a fee, portable video production equipment and the staff
to aid local cable casters in producing their program. A studio, located
within a five-mile radius of the Borough building, must be made available
to all access users on a first-come, first-served basis. A full schedule
of rates for use of said equipment, studio and staff must be provided.
Rates may give preference to noncommercial users.
J. Supply and install, at no cost to the customer, a closed-captioned
device when requested by the hearing impaired.
The company shall make cable service available, when permitted
by the property owner, to all residents in private housing in the
Borough, if applicable, subject to all provisions of this ordinance.
The company must obtain a permit from the Borough to provide
segments of subscribers any specialized service that will not be available
to all subscribers. All requests shall demonstrate that the service
is not contrary to the public interest and will not affect the company's
ability to deliver service to other users and subscribers.
A. The Borough shall not prohibit or limit any program or any class
or type of program or otherwise control the communications or signals
transmitted by the company or impose discriminatory or preferential
fees in any manner that would intend to encourage or discourage programming
of any particular nature, directly or indirectly, and shall not promulgate
any regulation that would interfere with the right of free speech
by means of cable television.
B. The company shall not prohibit or limit any program or class or type
of program presented over a leased channel or any channel made available
for public access or educational purposes.
In the event of expiration, cancellation or transfer of the
franchise, the company shall be required to continue to operate the
system until an orderly change of operation is effectuated, and shall
be subject to an accounting for net earnings or losses during this
interim period.
The company was represented throughout the negotiations of the
franchise renewal by its own attorneys and has had opportunity to
consult with its own attorneys about its rights and obligations regarding
the franchise. In consideration of the renewal of the franchise to
the company, the company hereby waives any claim which it may have
with respect to the issuance of and/or the terms and conditions of
the franchise ordinance. In consideration of the renewal of the franchise
to the company, the company also releases the Borough and any of its
elected officials, employees, representatives, agents and servants,
including attorneys, from any claims it may have, known or unknown,
including, without limitation, claims arising under Pennsylvania law,
the Cable Communications Policy Act of 1984 and the Cable Television
Consumer Protection & Competition Act of 1992, the ordinance and
charter of the Borough of Eddystone and/or the requirements of federal,
state or municipal law, including the Constitutions of the United
States and of Pennsylvania. However, the foregoing release shall not
apply to any claims which the company may have with respect to the
terms and conditions of the franchise ordinance where substantially
the same terms and conditions of other cable television franchises
have been held invalid by a binding and final judgment of the United
States or Pennsylvania Supreme Court.
A. The company shall fully indemnify, defend and hold harmless the Borough,
its officers, boards, commissions, elected officials, agents, attorneys,
representatives, servants and employees against any and all costs,
damages, expenses, claims, suits, actions, liabilities and judgments
for damages, including but not limited to expenses for legal fees,
whether suit be brought or not, and disbursements and liabilities
incurred or assumed by the Borough in connection with:
(1)
Damage to persons or property, in any way arising out of or
through the acts or omissions of the company or the Borough, their
respective servants, officials, agents, attorneys, representatives
or employees or to which the company's or the Borough's
negligence or that of their respective servants, agents, officials,
attorneys, representatives or employees shall in any way contribute;
(2)
Requests for relief arising out of any claim for invasion of
the right of privacy; for defamation of any person, firm or corporation;
for the violation of infringement of any copyright, trademark, trade
name, service mark patent; or of any other right of any person, firm
or corporation, excluding claims arising out of or relating to the
Borough's own programming;
(3)
Any and all claims arising out of the company's failure
to comply with the provisions of this franchise ordinance or any federal,
state or local law, ordinance or regulation applicable to the company
or the CATV system;
(4)
Any and all claims which the company may now or hereafter have
or claim or have against the Borough, its servants, agents, attorneys,
representatives, employees or officials, due to or arising out of
damage to any of the company's property or equipment, including,
without limitation, the resulting or consequential loss of income,
injury to reputation or any kind, caused by or resulting from acts
or omissions of the Borough or any of its servants, agents, attorneys,
representatives, employees or officials; and
(5)
Any and all disputes arising out of a claim wherein damages
or other relief is sought as a result of the communications franchising
procedure or as a result of the renewal of the cable communications
franchise, or as a result of the Borough's failure to award a
franchise to any other person, partnership, corporation or other legal
entity.
B. If suit be brought or threatened against the Borough, either independently
or jointly with the company, or with any other person or municipality,
the company, upon notice given by the Borough, shall defend the Borough
at the cost of the company. If final judgment is obtained against
the Borough, either independently or jointly with the company or any
other defendants, the company shall indemnify the Borough and pay
such judgment with all costs and satisfy and discharge the same.
C. The Borough reserves the right to cooperate with the company and
participate in the defense of any litigation either through intervention
or otherwise. The company shall pay, upon receipt of written demand
from the Borough, all expenses incurred by the Borough in defending
itself with regard to any matters in this section. These expenses
shall include but not be limited to attorney fees, and the reasonable
value of services (as determined by the Borough) rendered by the Borough
or any of its employees, officials, attorneys, servants, agents or
representatives.
D. The Borough is in no manner or means of waiving any governmental
immunity it may enjoy or any immunity for its agents, officials, servants,
attorneys, representatives and/or employees.
E. The company shall make no settlement in any matter identified above
without the Borough's written consent, which shall not be reasonably
withheld. Failure to inform the Borough of settlement shall constitute
a breach of this franchise ordinance and the Borough may seek any
redress available to it against the company, whether set forth in
this ordinance or under any other municipal, state or federal law.
F. If the Borough awards any additional cable communications franchise
in any future franchise process to a firm other than the company,
then the company agrees that it will not bring, or cause to be brought,
any action, suit or other proceeding claiming damages, or seeking
any other relief against the Borough, its elected officials, officers,
boards, commissions, employees, representatives, servants, agents
or attorneys for any award of a franchise made in conformity with
this ordinance, Pennsylvania Law, the Cable Communications Policy
Act of 1984 and the Cable Television Consumer Protection Competition
Act of 1992.
G. All rights of the Borough pursuant to indemnification, insurance,
letter of credit or performance bond(s), as provided for by this ordinance,
are in addition to all other rights the Borough may have under this
ordinance or any other ordinance, rule, regulation or law.
H. The Borough's exercise of or failure to exercise any rights
pursuant to any section of this ordinance shall not affect in any
way the right of the Borough subsequently to exercise any such rights
or any other right of the Borough under this ordinance or any other
ordinance, rule, regulation or law.
I. It is the purpose of this section to provide maximum indemnification
to the Borough under the terms and conditions expressed; in the event
of a dispute, this section shall be construed (to the greatest extent
permitted by law) to provide for the indemnification of the Borough
by the company.
J. The provisions of this section shall not be dependent or conditioned
upon the validity of this ordinance or the validity of any of the
procedures or agreements involved in the renewal of the franchise,
but shall be and remain a binding right and obligation to the Borough
and the company even if part or all of this ordinance, or the grant
or renewal of the franchise, is declared null and void in a legal
or administrative proceeding. It is expressly the intent of the company
and the Borough that the provisions of this section survive any such
declaration and shall be a binding obligation of an inure to the benefit
of the company and the Borough and their respective successors and
assigns, if any.
A. All ordinances or parts of ordinances in conflict with the provisions
of this ordinance, and all amendments, are hereby repealed.
B. To the extent that the Federal Communications Commission shall terminate
the controls in any area pertinent to this ordinance, this ordinance
may be amended by the Borough Council.
C. If any section, subsection, sentence, clause, phrase or portion of
this ordinance is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such provision, and such holdings,
shall not affect the validity of the remaining portions hereof.