A.
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.
B.
The franchise shall be granted under the terms and
conditions contained herein, consistent with the Borough Code and/or
other applicable statutory requirements.
C.
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.
D.
State-of-the-art continuing obligation.
(1)
General requirement. Throughout the term of any franchise
agreement, the franchisee shall construct, operate, maintain and upgrade
the cable communications system in order to ensure that it continuously
conforms to the state of the art in accordance with the requirements
set forth herein below. In addition, the franchisee, either on its
own initiative or at the reasonable request of the Borough, shall
participate in or undertake experiments, test, and other activities
to enhance and advance the state-of-the-art of cable communications
systems technology.
(2)
State-of-the-art report. A franchisee shall provide
to the Borough, in a form satisfactory to the Borough, at the Borough's
request, but no more often than once every year, a report setting
forth the franchisee's review and assessment of the current state-of-the-art
of cable communications systems and its plans, if any, for upgrading
the system to conform to the state of the art. The report shall address,
at a minimum: technological advances making possible enhanced signal
quality, publicly available equipment for the receipt of services
or greater channel capacity and interactive systems; a list of each
jurisdiction in which new technologies have been or are being used
and a description of the experience those jurisdictions have had with
such new technologies; and assessment of the costs associated with
implementing such new technologies into the system; the franchisee's
activities to enhance or advance such technology in connection with
the system and any other cable communications system or systems operated
by the franchisee or any affiliated person in the Borough or elsewhere,
and the franchisee's compliance with and any modifications with respect
thereto; and assessment of the need to scramble signals distributed
over the system in order to prevent theft of service (such assessment
to investigate alternatives to scrambling of signals and include a
cost/benefit analysis of both scrambling and such alternatives that
takes into account significant costs and benefits both to the franchisee
and subscribers); a discussion of additional technological advances
anticipated during the remainder of the term of the franchise, along
with a projection of the costs and timetable for the franchisee offering
such advances as part of or over the system; a discussion of what
improvements the franchisee anticipates making in its customer service
facilities, equipment, systems and operations during the remainder
of the term of the franchise, along with a projection of the costs
and timetable for the implementation of such improvements; a description
of any technical experimentation which the franchisee or any affiliated
person anticipates undertaking during the remainder of the term of
the franchise; an assessment of the compatibility of the system with
subscribers' televisions and videocassette recorders, the franchisee's
compliance with the rules and regulations promulgated by the FCC pursuant
to Section 624 A of the Cable Act (47 U.S.C. § 544a) and
any experimentation the franchisee is making to enhance such compatibility;
and, generally, the steps the franchisee or any affiliated person
is undertaking to continuously construct, operate, maintain and upgrade
the system in accordance with the state of the art. The state-of-the-art
report submitted by a ranchisee may be only one resource that the
Borough will consider in evaluating the franchisee's obligation pursuant
to the terms and conditions of this chapter to continuously construct,
operate, maintain and upgrade the system in accordance with the state
of the art, and the Borough may commission third parties, as necessary,
to ascertain the current state-of-the-art in cable communications
systems generally.
(3)
Procedures for maintaining state of the art. Upon
receiving the report from a franchisee required pursuant to this section
of this chapter, the Borough will evaluate such report and assemble
any additional data necessary to ascertain whether the franchisee's
system or any aspect thereof needs to be upgraded so that it meets
the state-of-the-art requirement set forth herein.
(4)
Directive. Upon completing the evaluation contemplated
by this section of this chapter, and after providing notice to a franchisee
and an opportunity for the franchisee to comment, the Borough may
issue a reasonable directive to the franchisee to upgrade the system
so as to incorporate state-of-the-art features. Within 45 days after
receipt of such directive, such franchisee shall submit plans, as
specified by the Borough, describing how it intends to complete such
upgrade. Upon approval of such plans by the Borough, the franchisee
shall commence and diligently pursue implementation of the required
upgrade.
(5)
"State-of-the-art" or "state of the art," as applicable,
means that level of technical or service performance, capacity and
capability (including, but not limited to, plant or other equipment;
access channel and other production equipment or facilities; construction
techniques; customer service; facilities, equipment systems and operations;
and performance standards) which has been developed and demonstrated
in the cable industry, or any other comparable industry that provides
services to the public under similar conditions, to be workable and
economically and technically feasible and viable from time to time
throughout the term of the franchise.
(6)
"Economically and technically feasible and viable"
means capable of being provided:
(a)
Through technology which has been demonstrated
in actual applications (not simply through tests or experiments) to
operate in a workable manner; and
(b)
In a manner which has a reasonable likelihood
of generating additional revenues or other financial benefits for
a system, when measured over the term of the franchise.
For the purpose of operating and maintaining
a cable communications system in the Borough, a grantee may erect,
install, construct, repair, reconstruct and retain in, on, over, under,
upon, across and along the public streets and ways within the Borough
such wires, cable, 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 communications 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 specified in the franchise agreement in the
discretion of the Borough.
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 communications
system as it deems appropriate; and/or build, operate and own such
cable communications system or systems as it deems appropriate.
A.
Transfer of franchise. No franchise granted hereunder
shall be transferred and no control or controlling interest in any
system, franchise, or franchisee shall be transferred without the
prior written consent of the Borough, 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.
B.
The franchisee shall promptly notify the Borough by
written petition of any proposed transfer. The petition shall fully
describe the proposed action and shall be accompanied by a justification
for the action and, if applicable, an argument as to why such action
would not involve a change in control or controlling interest. The
Borough shall notify the franchisee as soon as all of the information
required by the FCC, the franchise agreement, this chapter and all
applicable state and local law has been received by the Borough and
that therefore the petition is complete, after which the Borough shall
take action within 120 days following the date such notice is provided
by the Borough, pursuant to Section 617(e) of the Cable Act.
C.
For the purpose of determining whether it shall consent
to a transfer, the Borough may inquire, with the assistance of the
grantee, into the legal, financial, character, technical, customer
service, and operations qualifications of the prospective controlling
party, and the effect that the proposed transfer and sale price may
have on rates being paid by subscribers, failure to provide all information
reasonably requested by the Borough as part of said inquiry shall
be grounds for denial of the proposed transfer. If the Borough finds
the results of this inquiry are satisfactory, its consent to such
transfer shall not be unreasonably withheld.
D.
Assumption of control. Any financial institution having
a pledge of the franchise or its assets for the advancement of money
for the construction and/or operation of the franchise shall have
the right to notify the Borough that it or its designees satisfactory
to the Borough will take control and operate the cable television
system; further, said financial institution shall also submit a plan
for such operation that will insure continued service and compliance
with all franchise obligations during the term the financial institution
exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year,
unless extended by the Borough at its discretion, and during said
period of time it shall have the right to petition for transfer of
the franchise to another grantee. If the Borough finds that such transfer,
after considering the legal, financial, character, technical, customer
service, and operations qualifications of the applicant are satisfactory
and that the proposed transfer and sale price will not result in a
rate increase to subscribers, the Borough will transfer and assign
the rights and obligations of such franchise as in the public interest.
The consent of the Borough to such transfer shall not be unreasonably
withheld.
E.
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.
F.
The Borough reserves the right to review the purchase
price of any transfer or assignment of the cable television system.
Any negotiated sale value which the Borough deems unreasonable will
not be considered in the rate base for any subsequent request for
rate increases, if permitted by applicable law and Section 4-5041
of this chapter.
G.
Any approval by the Borough of transfer of ownership
or control shall be contingent upon the prospective controlling party
becoming a signatory to the franchise agreement.
H.
Except as otherwise provided in Subsection D above, the Borough reserves the right of first purchase in any transfer of the system. Should the Borough exercise this option, it shall do so within 30 days of notification and thereafter shall make payment therefor under the same terms and conditions as the proposed transferee, or as the parties might otherwise agree.
I.
The transfer of any franchise or the transfer of control or controlling interest in any system, franchise or franchisee without the prior written consent of the Borough shall be deemed to be an abandonment of the system by the franchisee under § 126-33C of this chapter and shall entitle the Borough to all of the rights set forth under § 126-33C.
A.
Because the Borough finds that the streets of the
Borough to be used by the grantee in the operation of its system within
the boundaries of the franchise area are valuable public properties
acquired and maintained by the Borough at great expense to its taxpayers;
the grant to the grantee to the said streets is a valuable property
right without which the grantee would be required to invest substantial
capital in right-of-way costs and acquisitions; the administration
of this chapter and the franchise imposes upon the Borough additional
responsibility and expense; and the presence of the grantee and its
facilities places additional burdens upon the Borough and the volunteer
fire company serving the area which is supported by the Borough; grantee
of any franchise hereunder shall 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, or local law. The
present maximum franchise fee allowable is 5% of gross annual revenues.
B.
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.
C.
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 certified by the grantee's chief financial
officer reflecting the total amounts of gross revenues for the period
conveyed by the payment.
D.
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 five 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.
A.
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 this chapter and the franchise agreement:
(1)
If the grantee shall default in the performance of
any of the material obligations under this chapter or under such documents,
contracts and other terms and provisions entered into by and between
the Borough and the grantee.
(2)
If the grantee shall fail to provide or maintain in
full force and effect the liability and indemnification coverage or
any performance bond or security fund as required.
(3)
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.
(4)
If the grantee practices any fraud upon the Borough
or any subscriber.
(5)
If it is determined that the grantee underpaid its
franchise fee by 15% or more for any year.
(6)
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.
(7)
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:
(a)
Default under any loan or any financing arrangement
material to the system or the obligations of the grantee under the
franchise agreement;
(b)
Default under any contract material to the system
or the obligations of the grantee under the franchise agreement; or
(c)
Termination of any lease or mortgage covering
all or any material part of the system.
(8)
If in regards to any grantee:
(a)
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
(b)
A writ or warrant of attachment, execution,
distraint, 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
(c)
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 hereafter 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
(d)
Any order, judgment or decree is entered in
any proceedings against a grantee decreeing the voluntary or involuntary
dissolution of the grantee.
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 or other events, 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 other events are without the fault or negligence of the
grantee. In the event that any such delay in performance or failure
to perform affects only part of a company's capacity to perform, the
company shall perform to the maximum extent that it is able to do
so and shall take all steps within its power to correct such cause
or causes. In correcting such cause or causes, a grantee shall take
all reasonable steps to do so in as expeditious a manner as possible.
A grantee shall notify the Borough in writing of the occurrence of
an event covered by this subsection within five business days of the
date upon which the grantee learns of its occurrence. Shortage or
unavailability of equipment from suppliers shall not be deemed to
be beyond the control of the grantee in regards to any construction
delays.
C.
Pending litigation or any appeal to any regulatory
body or court having jurisdiction over the grantee shall not excuse
the grantee from the performance of its obligations under this chapter
or the franchise agreement. Failure of the grantee to perform such
obligations 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.
D.
Procedure prior to revocation.
(1)
The Borough shall make written demand that the grantee
do so comply with any such requirement, limitation, term, condition,
rule or regulation or correct any action deemed cause for revocation.
After written demand is made, the Borough may place its request for
revocation of the franchise upon a regular Board meeting agenda. The
Borough shall cause to be served upon such grantee at least seven
days prior to the date of such Board meeting, a written notice of
this intent to request such revocation, and the time and place of
the meeting, notice of which shall be published by the Borough once,
at least seven days before such meeting, in a newspaper of general
circulation within the Borough.
(2)
The Board shall hear any persons interested therein,
and shall determine in its discretion, whether or not any failure,
refusal or neglect by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee
was with just cause, as determined by the Board, the Board shall direct
the grantee to comply within such time and manner and upon such terms
and conditions as are reasonable.
(4)
If the Board shall determine such failure, refusal
or neglect by the grantee was without just cause, then the Board may,
by resolution, declare that the franchise of the grantee shall be
revoked and the performance bond forfeited.
E.
Disposition of facilities. In the event a franchise
expires, is revoked or otherwise terminated, the Borough may, in its
sole discretion, do any of the following:
(1)
Order the removal of the system facilities from the
Borough within a reasonable period of time as determined by the Borough.
(2)
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.
(3)
Order that the system be transferred to another cable
operator.
F.
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 all public ways and places
in as good a condition or better as that 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. The liability,
indemnity, insurance and performance bond as provided herein shall
continue in full force and effect during the period of removal and
until full compliance by the grantee with the terms and conditions
of this paragraph, this chapter and the franchise agreement.
G.
Restoration by Borough; reimbursement of Costs. In the event of a failure by the grantee to complete any work required by Subsection E or F of this section, or any other work required by Borough law or ordinance within the time as may be established and to the satisfaction of the Borough, the Borough may cause such work to be done and the grantee shall reimburse the Borough the cost thereof within 30 days after receipt of an itemized list of such costs or the Borough may recover such costs through the performance bond or letter of credit provided by grantee. The Borough shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
A.
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 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:
(1)
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
(2)
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 this chapter.
B.
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 his 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 with the Borough, a local office
and 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.
