[Adopted 6-5-1979 by Ord. No. 178]
For the purposes of this article the following
terms, phrases, words and their derivation shall have meaning given
herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number include
the singular number, and the words in the singular number include
the plural number. The word "shall" is always mandatory and not merely
directory.
A system of coaxial cables or other electrical conductors
and transmission equipment used or to be used primarily to receive
television or radio signals directly or indirectly off-the-air, and
other related services, and transmit them to subscribers for a fee.
A person who is the recipient of a franchise in accordance
with the provisions of this article.
Any individual, firm, partnership, association, corporation,
company, or legal entity of any kind.
The Township of Upper Southampton, Bucks County, Pennsylvania.
The Board of Supervisors of the Township is hereby authorized, in consideration of the faithful performance and observance of the conditions and obligations herein, imposed, to grant to a company the revocable nonexclusive franchise right, privilege, authority and easement for a period of 15 years from the date of acceptance of this article by the 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 Township, 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 and the Commonwealth of Pennsylvania and the ordinances and regulations of the Township now in effect or hereafter enacted, subject to revocation as provided in § 70-19.
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 township, 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 laws and regulations of the United States of America and
the Commonwealth of Pennsylvania, and the ordinances and regulations
of the Township. 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, providing 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 individual permits are issued for the location of such poles
subject to the written approval of the affected property owner and
the Board of Supervisors, and, in addition, so to use, operate and
provide similar properties rented or leased from other persons for
such purpose.
B.
The company's rights and privileges shall be subordinated
to any prior lawful use or 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 Township 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 any equipment or facilities
of company shall interfere with any such improvement existing or intended
to be made by the Township, company shall, upon notice from Township,
forthwith relocate said equipment and facilities at company's expense
so as to eliminate said interference.
C.
In case of disturbance of any streets, sidewalk, alley,
public way, or paved area, the company shall, at its own cost and
expense and in a manner approved by the Township's appropriate authority,
replace and restore such street, sidewalk, alley, public way, or paved
area in as good a condition as before the work involving such disturbance
was done.
D.
If at any time during the period of the franchise
the Township shall lawfully elect to alter or change the grade or
alignment or rerouting of any street, sidewalk, alley, or other public
way, the company, upon reasonable notice by the Township, shall remove,
relay, and relocate its poles, wires, cable, underground conduits,
manholes, and other fixtures at its own expense.
E.
Any poles or other fixtures placed in any public way
by the company shall be placed in such manner as not to interfere
with the usual travel on such public way.
F.
The company shall have the authority, under the supervision
of the Township's appropriate authority, and only after prior approval
thereof, to trim trees upon and overhanging streets, alleys, sidewalks,
and public ways and places of the Township so as to prevent the branches
of such trees from coming in contact with the wires and cable of the
company.
G.
The company shall, at 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 the building.
H.
The company shall at all times keep on file with the
Township Manager true and accurate maps or plats of all existing and
proposed aerial and underground feeder lines, trunk lines and subtrunk
lines, and a list of educational and municipal buildings to which
special services are being provided.
I.
Construction and maintenance of the transmission distribution
system shall be in accordance with the provisions of the National
Electrical Safety Code, Sixth Edition, 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.
J.
All installations of equipment shall be durable, 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. Company shall comply with all Township regulations, ordinances
and state and federal laws now existing or hereinafter enacted, and
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.
K.
All structures and all lines, equipment and connections
in, or over, under and/or upon the streets, sidewalks, alleys, and
public ways or places of the township, wherever situated or located,
shall be kept and maintained at all times in a safe, suitable and
substantial condition, and in good order and repair.
L.
In the construction, conduct, maintenance and operation
of its business, the company shall comply with all requirements of
the Township 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.
M.
Company shall not begin any construction, modification,
addition, replacement, removal or any change whatever of its facilities
in any public place (except ordinary and necessary repairs) without
filing with the Township and the Engineer a plan of such work and
receiving written approval therefor. The review of the Engineer and
the Township shall be to assure compliance with the terms of this
article. The company shall also, in connection with any work requiring
modification of any Township facilities (including Township roads),
enter into an agreement with the Township with surety satisfactory
to the Township providing for reasonable engineering and inspection
fees and legal fees, if any, occasioned as a result of the work or
preparation of an escrow agreement. Such escrow shall not be less
than 130% of the cost of the work effecting the Township's improvements
as estimated by the Township Engineer. Any such escrow agreement shall
provide that the cost of repairing the Township's improvements, or
restoring them to their original condition prior to the commencement
of the work, may be deducted from any cash escrow placed with the
Township pursuant to such agreement.
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.
In all areas of the Township where cables, wires,
or other like facilities of public utilities are underground at the
time of this enactment, or are later placed underground, the company
shall place its cable, wires or other like facilities underground
in the former case at the time of construction, or in the latter case
when such facilities are placed underground, as the case may be.
The company shall grant to the Township, free
of expense, joint use of any and all poles owned by it for any proper
Township purpose, provided 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 Township or its emergency management agency;
make its facilities and personnel available to the Township or said
authority during the emergency or disaster period without charge.
The company shall maintain an office in Lower
Bucks County which shall be open during all usual business hours,
have a listed telephone, and be so operated that complaints and requests
for repairs and adjustments and requests for use of facilities by
the Township and its emergency management agency may be received at
any time.
The company's charges for installation and monthly
service shall be established in the contract awarding the franchise.
The company shall have the option to require a deposit for each set
commander provided to subscriber. Such deposit to be returned to subscriber
if subscriber discontinues service and returns set commander in good
condition. There shall be no increase in rates without the express
consent of the Board of Supervisors of the Township.
The company shall not sell, service, install
or rent television receivers.
The company shall:
A.
Produce a picture, whether in black and white or in
color, that is undistorted, free from ghost images, and accompanied
with proper sound of typical TV production sets.
B.
Transmit signals of adequate strength to produce good
pictures with good sound at all outlets without causing cross-modulation
in the cables or interfering with other electrical or electronic systems.
C.
Maintain at all times the technical standards provided
in FCC regulation, Section 76.605, as currently in effect and as amended,
and shall conduct performance tests as provided in FCC Regulation,
Section 76.601, as currently in effect and as amended. Said tests
shall be made available to and conducted with such consultants as
are from time to time designated by Township to participate in said
testing. Said consultants shall have the right to perform the testing
in connection with, or independent of, testing done by company, as
required under FCC regulations.
D.
Transmit signals of adequate strength to produce good
pictures and good sound at all outlets without interfering with other
electrical or electronic systems or equipment or with television reception
of sets in the area not connected to the company's cable system.
E.
The company must provide service response seven days
a week for all complaints and requests for adjustments within 24 hours
of receipt of such complaints and requests, provided they are attributable
to the cable system. Complaints and requests of all other nature shall
be answered within 48 hours after the complaint. Upon failure to remedy
a loss of service attributable to the cable system within 24 hours
after a complaint, company shall credit 1/30 of the regular monthly
charge to the subscriber for each 24 hours or fraction thereof, after
the initial 24 hours, until service is restored.
F.
Whenever it is necessary to interrupt service for
the purpose of making repairs, adjustments or installation, the company
shall do so at such time as will cause the least amount of inconvenience
to subscribers. Unless such interruption is unforeseen and immediately
necessary, it shall give reasonable notice to affected subscribers.
The requirements for maintenance of equipment contained in this provision
shall not apply to the subscriber's television receiver.
G.
Company shall keep a log listing by category all complaints
and trouble calls received, the number of second or subsequent calls
on the same complaint, the remedial action taken, the period of time
required to satisfy each reported complaint, and credits (if any)
to subscribers. Company shall also furnish annually to the Township
copies of proof of performance reports and financial reports of the
company when they are required to be filed with the Federal Communications
Commission, together with copies of any and all other FCC filings.
H.
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 Township. For good cause shown,
the company may request and the Township may grant reasonable extensions
of time to comply with this requirement.
A.
The company shall pay to the Township a percentage of its gross annual basic cable service receipts, together with a percentage of its net receipts on other services rendered to subscribers; such percentages shall be established in the contract awarding the franchise. "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 of by any lessee of the company from the sale of its basic cable TV services and facilities to said subscriber or lessee of the company within the limits of the Township, as those services and facilities are described in § 70-10 hereof. For purposes of this subsection, "net receipts" are defined as the difference between gross of the company received from such services and the cost of providing the same.
B.
In addition to the aforesaid franchise fee, company
shall reimburse Township for its initial costs for attorneys' fees
in connection with the. establishment of this franchise, and reasonable
engineers' fees concerning the establishment of standards in connection
with the franchise, and such other reasonable professional fees in
the course of modification of the terms of this franchise as may be
necessary from time to time. Company shall not be responsible for
the payment of any professional fees where the Township is attempting
to, or has attempted to, enforce the provisions of this Part against
any recalcitrant company.
C.
The company shall file with the Township, within 90
days of the expiration of any fiscal year during which this franchise
is in force, financial statements certified by an independent accountant
in accordance with Statement on Auditing Standards #14 as issued by
the Auditing Standards Executive Committee of the American Institute
of Certified Public Accountants. Such statements shall not contain
an adverse or disclaimer of opinion. The auditor's opinion shall contain
assurance that the company is in compliance with the financial terms
and provisions of this article. In addition to the normal audit procedures,
the auditor shall perform such work as may be necessary to satisfy
himself that gross revenues as defined are properly stated. He shall
also express an opinion on the monthly reports required by this article.
D.
The company is required to file an annual report with
the Township within 30 days of the end of each calendar year setting
forth the company's gross receipts for the preceding year, apportioning
gross receipts between basic cable service and all other services,
and setting forth the company's cost of providing such other services.
The full payment required of the company pursuant to this section
shall be made at the time of filing the report. Any noncompliance
with this section shall permit the Secretary of the Township, or the
Township's authorized representative, to examine or have examined
the books and records of the company to assure compliance with the
terms and provisions of this article and to charge the reasonable
cost thereof to the company. Failure to pay any sums due on the day
due will result in a five-percent penalty on the amount overdue.
E.
Company shall keep on file with the Township a current
list of its stockholders, bondholders, and the holdings thereof.
The franchise herein granted is personal to
the company. It cannot be transferred, leased, assigned or disposed
of as a whole, or in part, either by forced sale, merger, consolidation,
or otherwise, without prior consent of the Township expressed by amending
this article, and then only under such conditions as may be therein
prescribed.
Upon termination of service to any subscriber,
company shall promptly remove all its facilities and equipment from
the premises of such subscriber at subscriber's request with no charge
to the subscriber. Any subscriber may terminate service at any time.
At the expiration of the term for which this
franchise is granted, or upon its termination and cancellation as
provided for herein, the Township 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 Township.
Installation of the system shall be commenced
within 90 days after written acceptance hereof by company. Significant
construction shall be accomplished within one year after FCC authorization
and energized trunk cable shall be extended to at least 20% of the
franchise area each subsequent year, with completion of construction
to be accomplished within six years of issue of FCC certification.
Construction shall be considered complete when company's facilities
are available at all properties in the Township. Should the company
conclude that construction cannot proceed sequentially in each year
because of lack of availability of customers, company shall so notify
the Township, together with a written report of its survey upon which
it bases its conclusion, with detailed information concerning the
routes investigated and the identity and addresses of potential customers.
Company will file with the Township and publish
locally true and accurate copies of maps and plans and schedules of
all existing and proposed installations 90 days prior to commencement
of construction.
A.
In addition to all other rights and powers pertaining
to the Township by virtue of this article or otherwise, the Township
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:
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 Township's rights under this franchise or any provision
of law. In the event that such termination and cancellation depends
upon a finding of fact, such finding of fact shall be made by the
Advisory Council with written reports to the Board of Supervisors.
C.
Company hereby releases Township from all claims arising
by reason of termination or cancellation of this franchise under the
terms of this section.
D.
No ordinance terminating and cancelling the franchise
shall be enacted without the company being first given the right to
be heard before the Board of Supervisors at a public meeting.
[Amended 9-8-1979 by Ord. No. 182]
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 Township may legally be required to pay as
a result of granting this franchise. These damages or penalties shall
include, but shall not be limited to, damages arising out of copyright
infringements and all other damages arising out of the installation,
operation or maintenance of the system authorized herein, whether
or not any act or omission complained of is authorized, allowed, or
prohibited by this article.
B.
The company shall pay, and by its acceptance of this franchise, specifically agrees that it will pay all expenses incurred by the Township 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 fees, and shall also include the reasonable value of any services rendered by the Township Solicitor or his assistants, or any employees of the Township.
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 Township and the company with regard to all damages mentioned in Subsection A above in the minimum amounts of:
(1)
Five hundred thousand dollars for bodily injury or
death to any one person, within the limit, however, of $1,000,000
for bodily injury or death resulting from any one accident.
(2)
Two hundred fifty thousand dollars for property damage
resulting from any one accident.
(3)
One hundred thousand dollars for all other types of
liability.
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 Township in the penal sum of $50,000 conditioned that the company
shall well and truly observe, fulfill, and perform each term and condition
of this article, and that in case of any breach of condition of the
bond, the amount thereof shall be recoverable from the principal and
surety thereof by the Township for all damages resulting from the
failure of the company to well and faithfully observe and perform
any provision of this article. The company may request a reduction
in the bond, or that it be relieved therefrom entirely, one year from
the date the company renders service to the customers in the Township.
Relief from the bonding provisions shall be exclusively within the
discretion of the Board of Supervisors.
E.
The insurance policies and bond obtained by the company
in compliance with this section must be approved by the Board of Supervisors.
Such insurance policies and bond, along with written evidence of payment
of required premiums, shall be filed and maintained with the township
Secretary during the term of the franchise.
F.
All expenses of the above-noted insurance and bond
shall be paid by company.
The company agrees and shall:
A.
Provide each public, private and parochial school,
fire stations, public libraries and Township buildings, and such public
auditoriums and institutions as are requested by the Township, with
a single drop and service without charge. Additional drops and service
will be charged to the facility by the company at cost to company
of time and material only.
B.
Company shall 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 and shall provide
a minimum service offering as follows:
(1)
Public access channel. The company shall maintain
at least one specially designated, noncommercial public access channel
available on a first-come, nondiscriminatory basis.
(2)
Educational access channel. The company shall maintain
at least one specially designated channel for use by local educational
authorities.
(3)
Local government access channel. The company shall
maintain at least one specially designated channel for local government
uses.
(4)
Leased access channel. The company shall maintain
at least one specially designated channel for leased access uses.
In addition, other portions of its nonbroadcast band width, including
unused portions of the specially designated channels, shall be available
for leased uses. On at least one of the leased channels, priority
shill be given to part-time users.
C.
Channel capacity. Company shall construct a system
with a minimum channel capacity of 35 television channels and with
the technical capability of transceiver nonvoice communications. At
such time as transceiver nonvoice communication becomes operable,
no monitoring of any terminal connection to the system shall take
place without specific written authorization by the user of the terminal
in question on each occasion. In no event shall monitoring of any
kind take place without a clearly visible light and clearly audible
sound signal. The light shall be visible and the sound audible at
a distance of at least 30 feet from the terminal at the time of monitoring.
D.
Company shall carry on its system the signals of all
stations significantly viewed in Bucks 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.
E.
Program origination. Company shall conduct program
origination cablecasting, in addition to any automated services.
F.
Company shall provide both portable and stationary
equipment to be used by access cable casters with the aid of a technical
and production staff to be provided by the company. Included should
be equipment that can store programs for later showing. In addition,
a centrally located studio must be made available to all access users
on a first-come-first-served basis. A full schedule of rates for use
of equipment, studio, and technical and production staff must be provided,
including rates for portable facilities if they differ. Rates may
give preference to noncommercial users.
The company shall install signal distribution
facilities to all residents of the Township, subject to all provisions
of this article.
The company must obtain a permit from the Township
to provide to 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 Township 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 tend 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 is required to continue to
operate the system until an orderly change of operation is effectuated,
but in the capacity of a trustee for its successor in interest, and
subject to an accounting for net earnings or losses during this interim
period.
For failure to complete construction and installation of the system as provided in § 70-17, unless the delay is approved in advance by the Township, the franchise term shall be reduced one year for each three months delay.
Copies of all petitions, applications and communications
submitted by the company to the Federal Communications Commission,
Securities and Exchange Commission, or any ether federal or state
regulatory commission or agency having jurisdiction in respect to
any matter affecting the company's operations authorized pursuant
to this franchise. shall also be submitted simultaneously to the Township
Board of Supervisors.
A.
The right is hereby reserved to the Township to adopt,
in addition to the provisions contained herein and in existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of the police power, provided that such regulations,
by ordinance or otherwise, shall be reasonable and not in conflict
with the rights herein granted.
B.
The Township shall have the right to inspect the books,
records, maps, plans, income tax returns, and other like materials
of the company at any time during normal business hours, after reasonable
notice to company.
C.
The Township shall have the right to supervise all
construction or installation work performed subject to the provisions
of this franchise and make such inspections as it shall find necessary
to insure compliance with the terms of this franchise and other pertinent
provisions of law.
The company shall have the right it all times
to take any and all legal action it deems necessary to preserve the
security to its community antenna television system and to assure
appropriate use thereof by its subscribers. In addition to the foregoing
rights reserved to the company, any person who willfully or maliciously
damages, or causes to be damaged, any wire, cable, conduit, apparatus
or equipment of the company, or who taps, tampers with, or connects
any wire or device to a wire, cable, conduit or equipment of the company
with intent to obtain a signal or impulse therefrom without authorization
of the company shall, for each and every such violation, upon conviction
thereof, be subject to a fine or a penalty of up to $300 for each
and every offense. Prosecution of any offenses charged hereunder shall
be the company's responsibility.[1]
Nothing herein contained shall be construed
to be a representation by the Township or any of its officers, agents
or employees that the authorization of this nonexclusive franchise
is within the authority of the Board of Supervisors to grant. It is
fully understood that the Township shall not be liable for any cost
of any kind incurred by the company resulting from any portion of
this article being held invalid, unauthorized, or unconstitutional,
nor shall be the Township be obligated to litigate the validity of
this franchise unless the cost thereof shall first be guaranteed by
the company in a manner satisfactory to the Board of Supervisors.
