In the event that the Borough shall grant to a grantee a nonexclusive revocable franchise to construct, operate and maintain a cable communications system within the Borough, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as regulated by the provisions of this chapter and a franchise agreement.
The franchise shall be granted under the terms and conditions contained herein, consistent with the Municipal Borough Code and/or other applicable statutory requirements. In the event of a conflict between any ordinance and the franchise, the franchise will control; provided, however, that the franchisee agrees that it is subject to the police power of the Borough and agrees to comply with the terms of any lawfully adopted, generally applicable local ordinance.
Any franchise granted by the Borough is hereby made subject to the general ordinances provisions now in effect and hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the Borough regarding permits, fees to be paid or manner of construction.
For the purposes of operating and maintaining a cable system (exclusive of noncable services) in the Borough, a grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the Borough such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable communications systems; provided, however, that grantee complies with all design, construction, safety and performance provisions contained in this chapter, the franchise agreement and other applicable laws, including, but not limited to, the Federal Technical Performance Standards, National Electrical Safety Code (current edition) and the power company and telephone company pole contract standards.
No poles shall be erected by a grantee without prior approval of the Borough with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the grantee shall be a vested right, and such poles shall be removed or modified by the grantee at its own expense whenever the Borough determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. The Borough shall have the right, during the life of the franchise, to install and maintain free of charge upon the poles owned by the grantee any wire and pole fixtures that do not unreasonably interfere with the operations of the grantee.
No cable system shall be allowed to occupy or use the streets of the Borough or be allowed to operate without a franchise.
The term of any franchise as granted pursuant to this chapter shall be mutually determined by the grantee and Borough and shall be specified in the franchise agreement.
Any franchise granted pursuant to this chapter shall be nonexclusive. The Borough specifically reserves the right to grant at any time such additional franchises for a cable system as it deems appropriate and/or build, operate and own such cable communications system or systems as it deems appropriate.
Transfer of franchise. No franchise granted hereunder shall be transferred and no controlling interest shall be transferred without the prior written consent of the Borough unless the prospective transferee is a parent corporation of the current franchisee, a subsidiary or affiliate corporation of such a parent company, a subsidiary or affiliate of the franchisee, and then only under such reasonable conditions as the Borough may establish, and only if in compliance with Section 617 of the Cable Act (47 U.S.C. § 537) and regulations promulgated by the FCC to implement Section 617. Such consent shall not be unreasonably withheld.
The franchisee shall make written application to the Borough of any transfer, as described above, and shall provide all information required by FCC Form 394 and any other applicable federal, state and local statutes and regulations regarding such transfer.
Within 30 days of receiving a written application for transfer, the Borough, in accordance with FCC regulations, shall notify the franchisee in writing of the information it requires to determine the legal, financial and technical qualifications for the transferee.
The Borough shall act upon transfer applications within 120 calendar days of presentation. If the Borough has not taken action for transfer within the aforesaid 120 calendar days, consent to the transfer shall be deemed given, in accord with Section 617(e) of the Cable Act.
The consent or approval of the Borough to any transfer of the grantee shall not constitute a waiver or release of the rights of the Borough in and to the streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this chapter and the franchise agreement.
Approval of the Borough to a transfer of ownership or control shall be contingent upon the prospective transferee's agreement that it will comply, in all respects, with the requirements of the franchise and all generally applicable laws, ordinances and regulations of the Borough.
A grantee of any franchise hereunder shall be required to pay to the Borough a franchise fee in an amount as designated in the franchise agreement up to the maximum amount permitted under applicable federal, state and local law. The present maximum franchise fee allowable is 5% of gross annual revenues. In the event that federal law is amended, any increase in the franchise fee rate shall be pursuant to formal action by the governing body and shall be implemented as soon as practicable, but no later than 60 days following receipt of written notice from the Borough to the grantee requesting the increase. A copy of the resolution or ordinance authorizing the increase shall accompany such written notice.
In the event that any franchise fee payment or recomputed amount is not made on or before the dates specified in the franchise agreement, grantee shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate of the Borough primary depository bank during the period that such unpaid amount is owed.
The franchise fee shall be payable as specified in the franchise agreement and shall commence as of the effective date of the franchise. The Borough shall be furnished at the time of each payment with a statement verified by a financial representative of the grantee reflecting the total amounts of gross revenues for the period conveyed by the payment.
The Borough shall have the right to inspect the grantee's income records and the right to audit and to recompute any amounts determined to be payable under this chapter for a period of three years from the date of payment. Audits shall be at the expense of the Borough unless the audit discloses an underpayment in any one year of 5% or more, in which case the costs of the audit shall be borne by the grantee. Any additional amount due the Borough as a result of the audit shall be paid within 30 days following written notice to the grantee by the Borough, which notice shall include a copy of the audit report unless written notice of disagreement is filed by the grantee with the Borough within such time.
Grounds for revocation or acceleration of expiration date. The Borough reserves the right to accelerate the expiration of the franchise term and/or revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under the ordinance and the franchise agreement:
If the grantee shall default in the performance of any of the material obligations under this chapter or under such documents or contracts entered into by and between the Borough and the grantee.
If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or any performance bond as required.
If the grantee shall violate any lawful orders or rulings of any regulatory body having jurisdiction over the grantee relative to this chapter or the franchise.
If the grantee practices any fraud upon the Borough or any subscriber.
If it is determined that the grantee underpaid its franchise fee by 15% or more for any year.
If the grantee's construction schedule is delayed later than the schedule contained in the franchise agreement or beyond any extended date set by the Borough.
If there is an occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or nonjudicial sale of all or any material part of the system, including, but not limited to, any of the following events:
Default under any loan or any financing arrangement material to the system or the obligations of the grantee under the franchise agreement;
Default under any contract material to the system or the obligations of the grantee under the franchise agreement; or
Termination of any lease or mortgage covering all or any material part of the system.
If in regards to any grantee:
A grantee shall suspend or discontinue its business, shall make an assignment for the benefit of creditors, shall fail to pay its debts generally as they become due, shall become insolvent (however, such an insolvency may be evidenced), shall be adjudicated insolvent, shall petition or apply to any tribunal for, or consent to, the appointment of, or taking possession by, a receiver, custodian, liquidator or trustee or similar official pursuant to state or local laws, ordinances or regulations of or for it or any substantial part of its property or assets, including all or any part of this system; or
A writ or warrant of attachment, execution, distrait, levy, possession or any similar process shall be issued by any tribunal against all or any material part of a grantee's property or assets; or
Any creditor of a grantee petitions or applies to any tribunal for the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official for the grantee or of any substantial parts of the assets of the grantee under the law of any jurisdiction, whether now or hereinafter in effect, and an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator or similar official or approving the petition in any such proceedings; or
Any order, judgment or decree is entered in any proceedings against a grantee decreeing the voluntary or involuntary dissolution of the grantee.
If there is a failure to restore service after 96 consecutive hours of total system outage in 40% or more of the system, except when approval of such interruption is obtained from the Borough or is excused pursuant to Subsection B.
Effect of circumstances beyond control of grantee. Notwithstanding any other provision of this chapter or the franchise agreement, a grantee shall not be liable for delay in performance of or failure to perform, in whole or in part, its obligations pursuant to the franchise agreement or this chapter, due to strike, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God, sabotage, shortage or unavailability of equipment from suppliers or other events force majeure where a grantee has exercised all due care in the prevention thereof and to the extent that such causes or other events are beyond the control of the grantee and such causes or events are without the fault or negligence of the grantee.
Pending litigation or any appeal to any regulatory body or court having jurisdiction over the grantee shall not excuse the grantee from its obligation to provide cable service. Failure of the grantee to perform such obligation because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section. The Borough shall comply with any related court orders.
Procedure prior to revocation.
The Borough shall provide written notification via certified mail, return receipt requested, that the grantee do so comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. Upon being notified in writing of notification to correct an alleged violation deemed a cause for revocation, there shall be a sixty-day period within which the grantee may demonstrate to the satisfaction of the Borough that the alleged violation does not exist, or cure the violation or, if the violation cannot be corrected within 60 days, submit a plan satisfactory to the Borough to correct the violation. If an alleged violation is proven to exist, and the Borough has received no cure or action on a plan to cure acceptable to the Borough within the 60 days specified, such enforcement penalties may then be implemented. The Borough may schedule a public hearing to consider revocation of the franchise during a regular Borough Council meeting agenda. The Borough shall cause written notice to be served upon the grantee at least 30 days prior to the date of such Borough Council meeting, such written notice to specify intent to consider revocation, the grounds for revocation and the time and place of the meeting, notice of which shall be published by the Borough in a newspaper of general circulation within the Borough, in accord with the state Borough Code.
In any such public hearing, both the franchisee and Borough shall have the right to introduce evidence, to require the introduction of evidence and to question witnesses in accordance with the standards of due process and fair hearing applicable to administrative hearings in the Commonwealth of Pennsylvania. A revocation shall be declared only by a written decision of the governing body after an appropriate public hearing which shall afford franchisee due process and full opportunity to be heard, to introduce evidence, to question witnesses and to respond to any notice of grounds to terminate in accordance with the standards of a fair hearing applicable to administrative hearing in the Commonwealth of Pennsylvania.
The governing body, after the public hearing and upon finding the existence of grounds for revocation, may either declare by resolution the franchise terminated or excuse such grounds upon a showing by the franchisee of mitigating circumstances or good cause for the existence of such grounds.
Either party may thereafter seek judicial review in a court of competent jurisdiction. All costs associated with the public hearing, administrative proceedings or the judicial review, including attorney's fees, incurred by the Borough shall be borne by the Borough.
Disposition of facilities. In the event a franchise is revoked, renewal denied or otherwise terminated, the Borough may, in its sole discretion, do any of the following:
Order the removal of the system facilities from the Borough within a reasonable period of time as determined by the Borough;
Require the grantee to maintain and operate its system for a period of up to 18 months or such further time as may be mutually agreed upon. During any time the grantee continues to operate the system, it shall do so pursuant to the terms of this chapter and its franchise agreement and shall be entitled to the revenues from the system.
Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave the prevailing prior to the grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The Borough shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal.
Termination by insolvency. The franchise granted hereunder shall, at the option of the Borough, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or similar action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise agreement, and the receivers or trustees within said 120 days shall have remedied all defaults under this chapter or the franchise agreement; and
Such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise agreement and the ordinance.
Termination by judicial action. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the grantee or any part thereof, including or excluding the franchise, the Borough may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee granted hereunder shall cease and terminate 30 days after service of such notice, unless:
All notices from grantee to the Borough pursuant to this chapter and the franchise agreement shall be to the Borough Manager or Borough Secretary or his/her designee. Grantee shall maintain with the Borough, throughout the term of the franchise, an address for service of notices by mail. Grantee shall also maintain a convenient business office and a local or toll-free telephone number for the conduct of matters related to the franchise during normal business hours. The grantee shall be required to advise the Borough of such address and telephone numbers and any changes thereof.