[HISTORY: Adopted by the Board of Commissioners
of the Township of South Whitehall 4-13-1966 by Ord. No. 46. Amendments
noted where applicable.]
[Amended 1-20-1969 by Ord. No. 107; 12-15-1993 by Ord. No.
580]
A.Â
Short title. This chapter shall be known and may be
cited as the "South Whitehall Township Cable Television Ordinance."
B.Â
Purpose. The purpose of this chapter is to regulate
cable television in the exercise of the power of the Board of Commissioners
to:
(1)Â
Regulate telephone, telegraph and electric power poles
and other obstructions erected upon or in the streets and roads of
the Township and other public easements.
(2)Â
Provide for the maintenance of peace, good government,
safety and welfare of the Township, and its trade, commerce and manufactures.
C.Â
Federal law. This chapter is enacted under the Federal
Communications Act of 1934, as amended, and especially as amended
by the Cable Television Consumer Protection and Competition Act of
1992, which permits local franchising authorities to regulate cable
television, subject to certain substantive and procedural limitations.
D.Â
Interpretation. In interpreting and applying the provisions
of this chapter, such provisions shall be construed broadly as required
for the maintenance of peace, good government, safety and welfare
of the Township, and its trade, commerce and manufactures.
E.Â
Conflict with federal law. It is the intent of the
Board of Commissioners that this chapter conform to the federal law.
If a court of competent jurisdiction declares any provision of this
chapter to be in conflict with the federal law, the federal law will
control and this chapter, to the extent that any provision is declared
to be in conflict with the federal law, shall not apply.
[Amended 1-20-1969 by Ord. No. 107; 12-15-1993 by Ord. No.
580]
As used in this chapter, the following terms
shall have the following meanings:
All equipment in a cable subscriber's building that is used
to receive the basic service, regardless of whether such equipment
is additionally used to receive other tiers of regulated programming
service and/or unregulated service. Equipment shall include, but not
be limited to:
At a minimum, all signals of domestic television broadcast
stations provided to any subscriber (except a signal secondarily transmitted
by satellite carrier beyond the local service area of such station,
regardless of how such signal is ultimately received by the cable
system), any public, educational and governmental programming required
by the franchise to be carried on the basic tier, and any additional
video programming signals a service added to the basic tier by the
cable operator.
The Board of Commissioners of the Township of South Whitehall,
Lehigh County, Pennsylvania.
Any person or group of persons:
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but 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 uses any public right-of-way.
A facility of a common carrier except to the
extent that such facility is used in the transmission of video programming
directly to subscribers.
Any facilities of any electric utility used
solely for operating its electric utility systems.
The Federal Communications Commission.
The Federal Communications Act of 1934, as amended, and especially
as amended by the Cable Television Consumer Protection and Competition
Act of 1992 and all regulations promulgated by the FCC thereunder,
as any of the foregoing may be amended from time to time.
All cash actually received by a person operating a cable
system in the Township of South Whitehall from or on account of subscribers
for cable service, together with all revenue from charges for the
rental, installation, connection and reinstatement of associated equipment
for such subscribers in the Township of South Whitehall.
[Amended 5-31-1995 by Ord. No. 622]
Any one or more individuals, partnerships, firms, limited
partnerships, associations, corporations, any other legal entity or
organization of any kind.
Any person now or hereafter owning or operating in the Commonwealth
of Pennsylvania equipment or facilities or producing, generating,
transmitting, distributing or furnishing electricity for the production
of light, heat or power, to or for the public for compensation; or
conveying or transmitting messages or communications by telephone
or telegraph for the public for compensation; or conveying passengers
or property, or both, by railroad or railway for public use and the
facilities thereof.
Includes all public streets, alleys, rights-of-way, public
easements, roads, highways and utility areas within the Township of
South Whitehall, Lehigh County, Pennsylvania.
The Township of South Whitehall, Lehigh County, Pennsylvania.
Includes fiber.
[Amended 1-20-1969 by Ord. No. 107; 12-15-1993 by Ord. No.
580]
On and after the effective date of this chapter,
it shall be unlawful for any person within the Township to operate
a cable system without first registering with the Township for such
privilege, executing for itself, its heirs, successors, administrators,
trustees, including trustees in bankruptcy, and assigns a certificate
accepting the terms hereof, and fully complying with the terms, conditions,
fees and penalties accompanying the grant of privileges to engage
in such activities as hereinafter set forth.
[Amended 1-20-1969 by Ord. No. 107; 5-12-1975 by Ord. No.
229]
A.Â
No poles, cables, equipment or wires for the construction,
maintenance and operation of a cable system shall be installed or
the installation thereof commenced on any existing pole or otherwise
within the Township until the proposed location, specifications and
manner of installation of such cables, equipment and wires shall have
been set forth upon a plot or map showing the existing poles, streets
or easements within the Township where such installations are proposed
and submitted in writing by any person, desiring to operate a cable
system, to the Board of Commissioners and approved by the Board of
Commissioners in writing.
B.Â
No poles, cables, equipment or wires for the expansion,
renovation, construction, maintenance or operation of a cable system
shall be installed or the installation thereof commences on any existing
pole or otherwise within the Township until the proposed location,
specifications and manner of installation of such cables, equipment
and wires shall have been set forth upon a plot or map showing the
existing poles, streets or easements within the Township where such
installations are proposed and submitted in writing by any cable operator
to the Board of Commissioners and approved by the Board of Commissioners
in writing.
C.Â
In the installation or maintenance of such poles,
cables, equipment and wires, there shall be no interference with the
public use of any street or easement more than necessary to enable
the performance and the installation of maintenance work with proper
economy and efficiency and the judgment of the Township shall be deemed
to be binding in this connection. When necessary, in order not to
interfere unduly with traffic or the rights of the traveling public,
the Board of Commissioners may determine the hours when such work
shall be performed and fix a time when such work shall be completed.
D.Â
The erection of any poles and the laying of any cables
or wires in public rights-of-way shall be subject to the consent and
supervision of the Board of Commissioners and shall be at the cable
operator's own cost and expense and the operator shall replace and
properly resurface any area or repave that portion of any street pavement
which may have been displaced or damaged by it and all replacement
of surfaces or street paving shall be in conformity with the specifications
as set forth by the Township Engineer.
E.Â
All poles and equipment, cables and wires so attached
to existing poles shall be erected or constructed in a good, safe
order and condition and in accordance with the best engineering practices
and safety requirements. Wires shall, in general, be placed only where
service poles for light, telephone and power lines have been or will
be installed so as to preserve the prevailing character of neighborhoods
and to maintain clear unobstructed streets as much as possible. Where
a street crossing is necessary for transmission or home service lines,
a minimum vertical height above the curb of 18 feet shall be maintained.
F.Â
In those areas where electric and telephone service
are required to be installed below ground, the portion of the cable
system shall be similarly installed.
G.Â
The distribution facilities of the cable system shall
be constructed and maintained at all times such that there is no interference
with the television reception by residents in the vicinity who are
not subscribers to the cable system. Any complaint registered to this
effect shall be investigated and rectified by the licensee within
72 hours of their receipt of notification of the complaint. The complaint
shall be in written form, forwarded to the cable operator with a copy
to the Township. A reply from the cable operator shall be similarly
required.
H.Â
It shall be the obligation of each cable operator
to serve all residents of the Township except to the extent that density
of homes, adverse terrain or other factors render providing services
impracticable, technically infeasible or economically noncompensatory.
For purposes of determining compliance with the provisions of this
section, and to provide for a reasonable and nondiscriminatory policy
governing extensions of cable service within the Township, which policy
was subject to public review in the public proceeding leading to the
enactment of this chapter, each operator shall extend service to new
subscribers at the formal installation charge and monthly rate for
customers of that classification, under the following terms and conditions:
[Amended 5-31-1995 by Ord. No. 622]
(1)Â
Where the new subscriber, or nearest subscriber of
a group of new subscribers, is located within 500 feet of existing
trunk cable.
(2)Â
Where the number of homes to be passed by such new
extension cable plant bears the same proportional ratio to the total
amount of new cable plant as the average number of homes passed per
mile of existing cable plant.
(3)Â
In extending lines to new subdivisions and/or land
developments within the Township, each cable operator shall accept
from the developer only those easements which provide nonexclusive
rights to operate a cable system within such subdivision and/or land
development. No such easement shall prevent any other cable operator
authorized to operate within the Township, then or in the future from
using such easement to extend other and further lines to such subdivision
and/or land development. In each new subdivision and each new land
development, the developer shall, upon notifying public utilities
of the opportunity to serve such subdivision or land development,
also notify all cable operators licensed to operate a cable system
in the Township of South Whitehall, of the opportunity to install
cable facilities to serve the subdivision or land development. Each
owner of a separate tract of land of record in such subdivision or
land development and all persons within the Township shall have the
right to freely choose any cable operation permitted in the Township
to serve such person with such cable operators cable system.
I.Â
Cable system office hours and telephone availability.
(1)Â
The cable operator will maintain a local, toll-free
or collect call telephone access line which will be available to its
subscribers 24 hours a day, seven days a week.
(a)Â
Trained company representatives will be available
to respond to customer telephone inquiries during normal business
hours.
(b)Â
After normal business hours, the access line
may be answered by a service or an automated response system, including
an answering machine. Inquiries received after normal business hours
must be responded to by a trained company representative on the next
business day.
(2)Â
Under normal operating conditions, telephone answer
time by a customer representative, including wait time, shall not
exceed 30 seconds when the connection is made. If the call needs to
be transferred, transfer time shall not exceed 30 seconds. These standards
shall be met no less than 90% of the time under normal operating conditions,
measured on a quarterly basis.
(3)Â
The cable operator will not be required to acquire
equipment or perform surveys to measure compliance with the telephone
answering standards above unless a historical record of complaints
indicates a clear failure to comply.
(4)Â
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time.
(5)Â
Customer service center and bill payment locations
will be open at least during normal business hours and will be conveniently
located.
J.Â
Installations, outages and service calls. Under normal
operating conditions, each of the following four standards will be
met no less than 95% of the time measured on a quarterly basis:
(1)Â
Standard installations will be performed within seven
business days after an order has been placed. "Standard" installations
are those that are located up to 125 feet from the existing distribution
system.
(2)Â
Excluding conditions beyond the control of the operator,
the cable operator will begin working on service interruptions promptly
and in no event later than 24 hours after the interruption becomes
known. The cable operator must begin actions to correct other service
problems the next business day after notification of the service problem.
(3)Â
The "appointment window" alternatives for installations,
service calls and other installation activities will be either a specific
time or, at maximum, a four hour time block during normal business
hours. The cable operator may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.
(4)Â
A cable operator may not cancel an appointment with
a customer after the close of business on the business day prior to
the scheduled appointment.
(5)Â
If a cable operator representative is running late
or an appointment with a customer and will not be able to keep the
appointment as scheduled, the customer will be contacted. The appointment
will be rescheduled, as necessary, at a time which is convenient for
the customer.
K.Â
Communications between cable operators and cable subscribers.
(1)Â
Notification to subscribers.
(a)Â
The cable operator shall provide written information
on each of the following areas at the time of installation of service,
at least annually to all subscribers, and at any time upon request:
[1]Â
Products and services offered.
[2]Â
Prices and options for programming services
and conditions of subscription to programming and other services.
[3]Â
Installation and service maintenance policies.
[4]Â
Instructions on how to use the cable service.
[5]Â
Channel positions of programming carried on
the system.
[6]Â
Billing and complaint procedures, including
the address and telephone number of the Township Manager's office.
(b)Â
Billing.
[1]Â
Bills will be clear, concise and understandable.
Bills must be fully itemized, with itemizations including, but not
limited to, basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period including optional charges, rebates and credits.
[2]Â
In case of a billing dispute, the cable operator
must respond to a written complaint from a subscriber within 30 days.
(c)Â
Refunds. Refund checks will be issued promptly,
but no later than either:
[Amended 5-31-1995 by Ord. No. 622]
(d)Â
Credits. Credits for service will be issued
no later than the customer's next billing cycle following the determination
that a credit is warranted.
[Amended 5-31-1995 by Ord. No. 622]
(2)Â
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
SERVICE INTERRUPTION
Definitions.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Those service conditions which are within the control of
the cable operator. Those conditions which are not within the control
of the cable operator include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages and severe
or unusual weather conditions. Those conditions which are ordinarily
within the control of the cable operator include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods and maintenance or upgrade of the
cable system.
The loss of picture or sound on one or more cable channels.
L.Â
Enforcement. In furtherance thereof, the Township
shall have the authority and responsibility to enforce these standards
to the fullest extent permitted by the federal law and in accordance
with all substantive and procedural requirements of the federal law.
In furtherance thereof, the Township may pursue any remedy provided
herein, by the federal law and any other for violations of these standards
as are permitted by the federal law, subject to the oversight and
control of the Board of Commissioners, including, without limitation:
[Amended 12-15-1993 by Ord. No. 580]
M.Â
Changes required by public improvements. The cable
operator shall, upon reasonable notice, and at its reasonable expense,
temporarily disconnect, relocate or remove from the street or other
public place any of its property when required by the Township by
reason of traffic conditions, public safety, street vacation, street
construction, installation of sewers, drains, water pipes or any other
type of structure or improvements by public agencies.
[Amended 5-31-1995 by Ord. No. 622]
N.Â
Requests for removal or change. The cable operator
shall, on the request of any person holding a building moving permit,
temporarily raise or lower its wires to permit the moving of said
building. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same, and the
cable operator shall have the authority to require such payment in
advance. The cable operator shall be given not less than 15 days advance
written notice of any move contemplated to arrange for temporary wire
changes.
[Amended 5-31-1995 by Ord. No. 622]
[Amended 12-15-1993 by Ord. No. 580]
The cable operator of the cable system and its
heirs, executors, successors, trustees, including trustees in bankruptcy,
and assigns, shall at all times fully indemnify, protect and save
harmless the Township, its agents, servants and employees from and
against all claims, actions, suits, damages and charges and against
all loss and necessary expenditures arising from the erection, construction,
maintenance and operation of the said works, or from the neglect or
failure to maintain its said works in good order and condition. In
the event there shall be failure or refusal to comply at any time
with any part of this chapter, or in the event that the business of
the operator of the cable system and its heirs, executors, successors,
trustee, including trustees in bankruptcy, and assigns, should be
discontinued voluntarily or involuntarily, then and in any said events
said cable operator and its heirs, executors, successors, trustees,
including trustees in bankruptcy, and assigns shall, at its own costs
and expense, remove its said equipment, cables and wires, erected
or attached to such existing poles.
[Amended 12-15-1993 by Ord. No. 580]
The operator of a cable system shall procure
and maintain such insurance as will protect it from any claim or claims
for damages to property and/or personal injury, including death, which
may arise from its operations and the maintenance of the apparatus
hereinbefore mentioned, and certificates of such insurance shall be
filed with the Secretary of the Township and kept in force at all
times, the limits of said insurance to be subject to the approval
of the Board of Commissioners as to adequacy of protection, and in
no event to be less than $500,000 for property damage and $500,000
limits for personal injury, including death, and $1,000,000 in the
aggregate.
[Amended 12-15-1993 by Ord. No. 580; 5-31-1995 by Ord. No.
622]
The Board of Commissioners of South Whitehall
Township understands that cable operators currently doing business
in the Township of South Whitehall believe that the franchise fee
each pays to the Township is a tax. The Board believes the franchise
fee is an administrative fee for the placement of cable system facilities
in public rights-of-way and easements. Nevertheless, the Board agrees
to forebear from the collection of business privilege taxes from any
cable operator providing cable services within the Township of South
Whitehall, provided:
A.Â
Such cable operator does not maintain a place of business
within the Township of South Whitehall and does maintain a place of
business in another municipality, which other municipality levies
and collects a business privilege tax from such cable operator.
B.Â
Such cable operator promptly complies with all payment
and performance requirements of this chapter.
[Amended 5-12-1975 by Ord. No. 229]
A.Â
Any privilege and permission granted under this chapter
shall be by ordinance of the Board of Commissioners of the Township
of South Whitehall and may at any time upon cause and after public
hearing be revoked by ordinance of the Commissioners of the Township
of South Whitehall and shall, at all times, be exercised and maintained
subject to the approval of the Commissioners of the Township of South
Whitehall. Any violation of the terms of this chapter shall be deemed
and taken to work a forfeiture of any permission and privileges that
may have been granted.
B.Â
Licensee shall undertake to provide to subscribers
at least 10 channels of video programming during normal broadcasting
hours on a continuing basis which shall include local educational
TV channel or channels.
C.Â
No person or company shall engage in the business
of "pay TV" without prior approval of the Township, which approval
shall include consideration of possible commensurate reduction of
existing basic subscriber fees.
The right to engage in the activities hereto
described shall not be construed to be an exclusive grant to any one
operator of a community antenna system so as to prevent the granting
of similar privileges to others.
Nothing herein shall be interpreted as meaning
that the Township of South Whitehall conveys or gives the right to
use the now existing poles or facilities or property of the Pennsylvania
Power and Light Company, Bell Telephone Company or any utility, railroad
or private corporation, person or partnership, without first obtaining
written permission from said parties, which written permission shall
be filed with the Secretary of the Township of South Whitehall before
any erection or field work is performed.
[Amended 12-15-1993 by Ord. No. 580]
If at any time the facilities being used are
ordered removed by the Commissioners or by the utility, railroad,
private corporation, person or partnership now using such facilities
and such facilities are not removed, then upon 60 days notice from
the Township the said wires, equipment and cables being used at such
location shall be removed at the expense of the cable operator of
the cable system and its heirs, executors, successors, trustees, including
trustees in bankruptcy, and assigns, within said time as ordered,
and the Board of Commissioners shall have the right to declare any
and all privileges granted withdrawn and forfeited.
[Amended 5-12-1975 by Ord. No. 229; 12-21-1978 by Ord. No.
287; 12-15-1993 by Ord. No. 580]
A.Â
Each cable operator presently conducting business
in the Township has assured the Township that there is effective competition,
as that phrase is defined in the federal law. Based on those assurances,
the Township does not presently seek FCC certification for regulation
rates. The Township reserves the right, however, to seek certification
and regulate cable rates in the Township for basic service and associated
equipment pursuant to federal law.
B.Â
Any cable operator doing business in the Township
pursuant to this chapter shall file with the Township Manager, in
writing, within 30 days of its effective date, notice of any rate
increase or decrease.
C.Â
Installation at public and parochial schools and municipal
buildings will be provided, on request, without charge, to a single
point of entrance to the building or complex of buildings located
in one geographic area. Should the school or municipal building desire
to provide its own exterior/interior distribution, the cable operator
will render technical assistance without charge. Such installations
are subject to inspection and approval of the cable operator.
[Amended 12-15-1993 by Ord. No. 580]
The following regulations shall apply to cable
operators who have received authorization from the Township to operate
a cable system within the Township:
A.Â
Any cable operator of any cable system shall, under
its seal and by its proper officers, within 30 days from the date
of the resolution granting permission, signify in writing its acceptance
of all the terms, conditions, regulations and restrictions of this
chapter, and shall also furnish the aforesaid certificates of insurance
and other documents required by this chapter, in default of any of
which the resolution shall become null and void and be of no effect.
Cable operators authorized and licensed to operate a cable system
within the Township on the effective date of this chapter shall file
the writings, certificates and documents mentioned above within 30
days of such effective date.
[Amended 5-31-1995 by Ord. No. 622]
B.Â
Each cable operator shall keep and render its books
and records in a manner which will readily disclose each item comprising
gross revenues with particularity.
C.Â
Each cable operator shall permit Township Auditors,
or any independent certified public accountant retained by the Township
or any other Township representative, at all reasonable times with
seven days prior notice to inspect the books and records of such operator,
including all records pertaining to the calculation of gross revenues.
[Amended 1-20-1969 by Ord. No. 107; 9-14-1981 by Ord. No.
333; 12-15-1993 by Ord. No. 580]
A.Â
From and after the effective date of this chapter,
all persons engaged or intending to engage in the business of operating
a cable system shall obtain a franchise license from the Board of
Commissioners, which franchise license shall be granted subject to
the terms of this chapter for a period of five years. All franchise
licenses may be reviewed under the provisions of this chapter for
an additional period of 10 years.
B.Â
A franchise fee is herewith levied on each person
operating a cable system within the Township. Such franchise fee is
in the amount of the greater of:
(1)Â
Five percent of such cable operator's gross revenues,
as defined herein, accrued during each calendar year of the franchise.
(2)Â
The highest amount permitted by law.
|
Amounts higher than 5% of gross revenues permitted
by law shall be effective for purposes of calculating franchise fees
hereunder as and when such higher amounts are authorized, from time
to time, by law.
|
C.Â
Such franchise fee shall be due and owing to the Township
within 60 days after the close of each calendar quarter for which
gross revenues are calculated. With payment of such franchise fee,
each such operator shall submit to the Board of Commissioners a verified
statement of such quarterly gross revenues, certified by such operator's
chief financial officer or an independent certified public accountant
acceptable to the Township, showing with particularity the source
and amount of each item comprising such gross revenues for such calendar
quarter.
D.Â
Within 120 days after the close of each calendar year
during which quarterly fees have accrued, the cable operator shall
submit to the Board of Commissioners a verified statement of such
annual gross revenues unqualified and certified by such cable operator's
chief financial officer or in independent certified public accountant
acceptable to the Township, showing with particularity each item comprising
such gross revenues for such calendar year and each calendar quarter
during which payments have accrued. Such annual statement shall be
prepared in accordance with Generally Accepted Accounting Principles
(GAAP) as established by the American Institute of Certified Public
accountants.
E.Â
With such annual statement, each cable operator shall
pay to the Township the principal amount of any payment in arrears
together with interest thereon at the maximum legal rate per annum
until paid. If an overpayment has been made for any calendar quarter,
the Township shall credit, without interest, the cable operator in
such operator's quarterly payment next following receipt of the annual
statement and any subsequent audit deemed necessary or desirable in
the Board's sole discretion.
F.Â
No acceptance of any payment shall be construed as
an accord that the amount paid is, in fact, the correct amount, nor
shall such acceptance of payment be construed as a release of any
claim which the Township may have for further or additional sums payable
under the provisions of this chapter.
[Amended 12-15-1993 by Ord. No. 580]
All legal, advertising or printing fees or expenses
incurred by the Township in connection with the passage of any resolution
under this chapter shall be paid by the cable operator of the cable
system in the Township.
There shall be filed with the Secretary of the
Township of South Whitehall a schedule of uniform tariffs covering
installations and hookup charges for both commercial and residential
buildings and service charges relating thereto and any subsequent
changes in said tariffs.
[Amended 1-20-1969 by Ord. No. 107; 2-7-1989 by Ord. No.
449; 12-15-1993 by Ord. No. 580]
Whoever makes any false or untrue statements
on his return or who refuses to permit inspection of the books, records
or accounts of any business in his custody or control, when the right
to make such inspection by the Township is requested, and whoever
fails or refuses to file a return required by this chapter, and whoever
fails or refuses to obtain a franchise license or shall violate any
of the provisions of this chapter shall, upon conviction thereof,
be sentenced to pay a fine not to exceed $600 plus costs and, in default
of payment of said fine and costs, to imprisonment for a term not
to exceed 30 days. Each day that a violation of this chapter continues
shall constitute a separate offense.
