[Ord. 212. Passed 1-22-1985]
This chapter shall be known and may be cited as the "Community Antenna Television System Ordinance."
STATUTORY REFERENCES
Manufacture, distribution or possession of devices for theft of telecommunications services — See 18 Pa.C.S.A. § 910.
Impairment of television service (criminal mischief) — See 18 Pa.C.S.A. § 3304.
Theft of services — See 18 Pa.C.S.A. § 3926.
GENERAL REFERENCES
CATV fees — See Ch. 208, Section 208.01(b).
[Ord. 212. Passed 1-22-1985; Ord. 310. Passed 6-20-1994; Ord. 433. Passed 3-21-2005]
As used in this chapter:
(a)
Basic Service Rates and Charges. "Basic service rates and charges" means the basic service tier rates and the charges for related equipment, installation and services which, pursuant to federal laws and regulations, may be regulated by franchising authorities
(b)
Basic Service Tier. "Basic service tier" means that tier of cable television service which contains, at a minimum, all local broadcast signals and the public, educational and governmental channels required by the contract. Provided that the contents of this tier meets this definition, the company may, in its sole discretion, determine what (if any) additional service will be provided as part of this tier.
(c)
Benchmark Approach. "Benchmark approach" means that theory of rate regulation which sets rates based upon benchmarks established by the FCC.
(d)
Board. "Board" means the Board of Supervisors of the Township or such other legally appointed or elected successor or agency constituting the governing body of the Township.
(e)
Community Antenna Television System, CATV or Cable Television System. "Community antenna television system," "CATV" or "cable television system" means a facility which receives and amplifies audio and visual signals by electrical impulses and distributes such signals to subscribing members of the public, employing wires, cables or fiber optics passing along, over, under, across and upon Township streets, which facility, in addition to providing such reception, amplification and/or distribution, is also used to originate and distribute programs, broadcasts or other communication services, materials or signals to such subscribers.
(f)
Company. "Company" means a person with whom the Board enters into a contract to erect, install, maintain and operate a cable television system, in accordance with the provisions of applicable law, within the Township.
(g)
Contract. "Contract" means the nonexclusive rights granted pursuant to this chapter to construct a cable television system along the streets within all or a specified area of the Township. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the Township as may be required by other ordinances and laws of the Township now or hereafter in effect.
(h)
Cost-of-Service Approach. "Cost-of-service approach" means that theory of rate regulation, to be initiated only by the company, which allows the company to charge rates in excess of the FCC benchmark rates upon a showing that the cost of providing cable service exceeds the benchmark rate.
(i)
FCC. "FCC" means the United States Federal Communications Commission, as presently constituted by the Communications Act of 1934, or any successor agency created by the United States Congress.
(j)
FCC Rate Regulations. "FCC rate regulations" means the report and order, in the matter of implementation of sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Docket 92-266, FCC 93-177 (released May 3, 1993), as amended.
(k)
Gross Subscriber Revenues. "Gross subscriber revenues" means any and all compensation or receipts derived from installation, disconnection and reinstallation charges and periodic service charges in connection with the carriage of broadcast signals and Federal Communications Commission-mandated nonbroadcast services, but does not include revenue from ancillary or auxiliary services, which include, but are not limited to, advertising, leased channels and programming supplied on a per program or per channel charge basis, if any. It does not include any refunds or credits made to subscribers or any taxes imposed on the services furnished by the company.
(l)
Streets. "Streets" includes each of the following located within the Township: streets, roadways, highways, avenues, lanes, alleys, sidewalks, bridges, tunnels, easements, rights-of-way and similar public ways and extensions and additions thereto which the Township has the legal authority to control and regulate and those of other governmental bodies and authorities which the Township has been or will hereafter be given the authority to control and regulate.
(m)
Subscriber. "Subscriber" means a member of the general public who receives broadcast programming distributed by a cable television system.
[Ord. 212. Passed 1-22-1985]
No person shall own or operate a cable television system in the Township except by a contract granting such power entered into between the Board of Supervisors and such person.
[Ord. 212. Passed 1-22-1985]
There is hereby granted by the Township to the company the right and privilege to construct, in accordance with Section 824.07, erect, operate and maintain in, upon, along, across, above, over and under the streets and the Township rights-of-way adjacent thereto, now laid out or dedicated, and all extensions thereof and additions thereto, in the Township, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the Township of a cable television system for the transmission of television signals and other signals to the inhabitants of the Township, either separately or upon or in conjunction with any public utility maintaining the same in the Township with all of the necessary and desirable appliances and appurtenances pertaining thereto, upon the terms and conditions set forth in this chapter. Without limiting the generality of the foregoing, this section hereby includes the use of, as by leasing or licensing, all lines and equipment necessary to a cable television system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend such lines, equipment and connections. The rights herein granted for the purposes herein set forth shall not be exclusive, and the Township expressly reserves the right to grant the same or a similar use of such streets and adjacent rights-of-way to any person at any time during the term of the contract with the company. A contract entered into between the company and the Township shall not be deemed to permit the company to have an exclusive right to service all or any part of the Township.
[Ord. 212. Passed 1-22-1985]
The company shall, at all times during the term of its contract with the Township, be subject to the lawful exercise of the police powers of the Township. The Township may adopt, in addition to the provisions contained herein and in existing applicable ordinances, such additional applicable rules and regulations and ordinances, or may modify any provision of this chapter or existing ordinances or rules and regulations, as it finds necessary in the exercise of its police power. Such modified or additional ordinances or rules and regulations shall be reasonable and shall not conflict with the laws of the state or of the United States or the rules of the Federal Communications Commission. No additions to or modifications of this chapter shall be made by the Township until 30 days' notice has been given to the company of such proposed additions or modifications.
[Ord. 212. Passed 1-22-1985]
(a)
The company shall indemnify and hold the Township harmless at all times during the term of its contract and shall pay all damages and penalties which the Township may be legally required to pay as a result of granting a contract to such company. Such damages and penalties shall include, but shall not be limited to, reasonable attorneys' fees and all other Township expenses, as well as damages arising out of copyright infringements and all other damages arising out of the construction, installation, operation or maintenance of the cable television system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by the contract.
(b)
The company shall, at all times during the term of its contract, carry and require its contractors to carry:
(1)
Insurance, in such form as is approved by the Township Solicitor to protect the Township and the company from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, erection, operation and maintenance of any structure, equipment or appliance, but in no case in an amount less than $500,000 as to each occurrence and $1,000,000 in the aggregate for property damage, and $500,000 as to each occurrence and $1,500,000 in the aggregate for bodily injury;
(2)
Worker's compensation insurance, as provided by the laws of the Commonwealth, as amended; and
(3)
Automobile insurance, with limits of not less than five hundred thousand dollars/one million dollars ($500,000/ $1,000,000) of public liability coverage and automobile property damage insurance with a limit of $250,000 covering all automotive equipment.
(c)
All of the insurance coverage provided for in subsection (b) hereof shall provide for a thirty-day notice by the insurance company to the Township in the event of material alteration or cancellation of any coverage afforded in such policies prior to the date such material alteration or cancellation shall become effective.
(d)
Copies of all policies required hereunder shall be furnished to and filed with the Township Secretary prior to the commencement of operations or prior to the expiration of prior policies, as the case may be.
(e)
The Company shall pay, and by its entering into a contract with the Township, specifically agrees that it will pay, all expenses incurred by the Township in defending itself with regard to all damages, penalties or other claims resulting from the actions or nonactions of such Company, its assigns, employees, agents, invitees or other persons. Such expenses shall include all out-of-pocket expenses, including, but not limited to, attorneys' fees and the reasonable value of any services rendered by members of the Township staff or any other employees of the Township.
(f)
The Township shall promptly notify the Company, in writing, in the event any claims, demand, suit or other legal action is made or taken against the Township because of any act or omission on the part of the Company.
[Ord. 212. Passed 1-22-1985]
(a)
All structures, lines and equipment erected by the Company within the Township shall be so located as to cause minimum interference with the proper use of streets and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners, and the Company shall comply with all reasonable, proper and lawful ordinances of the Township now or hereafter in force. Existing poles, posts, conduits and other such structures of any electric power system in the Township or of any telephone company or other public utility shall be used in order to minimize interference with travel and avoid unnecessary duplication of facilities. Where there are such existing poles, posts, conduits and other such structures reasonably available to the Company, the Company shall not erect or place any of its own poles, posts, conduits or other such structures without the express written approval of the Township. The Company shall obtain reasonable joint pole or conduit use agreements, leases or licenses from the owners of existing poles or conduits.
(b)
The Company shall not have a vested interest in the location of any pole or wire holding structure of the Company. The Company shall remove or modify such poles or structures at its own expense whenever the Board of Supervisors determines that such removal or modification is in the interest of public safety or welfare.
(c)
In case of any disturbance or damage by the Company of any public improvement (including, but not limited to, macadam, pavement, curbs, sidewalks, streets, driveways or other surfacing), or of any private property, the Company shall, at its own cost and expense and in a manner approved by the Township, replace and restore any public improvement or private property so disturbed or damaged to as good a condition as it was before such work was commenced.
(d)
If the utilities in any portion of the Township are underground, the system installed by the Company shall also be underground, except as may be otherwise approved in writing by the Township Engineer. If, at any time in the future, existing utilities are placed underground, the Company's system shall also be installed underground.
(e)
If, at any time during the term of the contract, the Township lawfully elects to alter or change any street requiring the relocation of the Company's facilities, the Company, upon reasonable notice by the Township, shall remove, relay and relocate the same at its own expense.
(f)
The Company shall, on the request of any person holding a building moving permit issued by the Township, temporarily raise or lower its lines to permit the moving of buildings. The expense of such temporary removal shall be paid by the person requesting the same and the Company may require such payment in advance.
(g)
The Company may, when authorized by the Township, trim trees upon and overhanging all streets of the Township so as to prevent the branches of such trees from coming into contact with the Company's facilities, all at the Company's cost and expense.
(h)
All installations by the Company of poles and cables and all other facilities relative to its operation shall be in accordance with good engineering practice, shall comply with all existing ordinances and regulations, shall conform to standards of the National Electrical Code and the National Electrical Safeky Code and shall be in accordance with requirements of the Township Engineer.
(i)
All poles, lines, structures and other facilities of the Company in, on, over or under the streets of the Township shall be kept by the Company at all times in a safe and substantial condition and in good order and repair.
(j)
Any openings or obstructions in streets made by the Company shall be guarded and protected at all times by the placement of adequate barriers, fences, boarding or other protective devices, at the sole expense of the Company. During the periods of dusk and darkness, such protective devices shall be clearly designated by warning lights.
[Ord. 212. Passed 1-22-1985]
The cable television system to be installed by the Company shall:
(a)
Be operationally capable of relaying to subscriber terminals those television and radio broadcast signals that the Company is now or hereafter required by the FCC to carry;
(b)
Consist of a cable network having a minimum initial forward bandwidth in compliance with the technical standards and rules of the FCC;
(c)
Provide for the Township, along with those County municipalities under contract with the Company, at least one dedicated, noncommercial, multiTownship, public access channel for public, educational and municipal government use and provide cable casting and production equipment and personnel for Township use of such public access channel. The Township Manager and/or the Board of Supervisors shall determine which Township programs will appear on such public access channel.
(d)
Provide at least one channel for programming of local weather conditions and the time;
(e)
Provide at least one channel each for those educational and public access uses now or hereafter required by the FCC;
(f)
Have a minimum capacity of thirty-five channels;
(g)
Have two-directional capability; and
(h)
Provide programming of a sufficient diversity as to best serve the needs of Township residents. Such programming should include local stations and specialized channels with a minimum of overlapping programming.
[Ord. 212. Passed 1-22-1985]
The Company shall, without charge for installation, maintenance or service, make single installations of its standard community antenna services in the Township Building and in each public and parochial elementary or secondary school, college or university in the Township as shall be requested by the respective units of government or educational institutions. However, such installations shall be made at reasonable locations that are not more than 300 feet from an existing trunk line. If a location is more than 300 feet from an existing trunk line, the Company shall pay a pro rata cost of such installation based on the ratio of 300 feet to the total footage from the location to the trunk line.
[Ord. 212. Passed 1-22-1985]
The cable television system shall be so designed, installed and operated as to meet the following general objectives:
(a)
Be capable of continuous twenty-four hour operation;
(b)
Be capable of operating over an outdoor temperature range of -20 degrees Fahrenheit to +120 degrees Fahrenheit without catastrophic failure or irreversible performance changes;
(c)
Be capable of meeting all specifications set forth herein over an outdoor temperature range of 0 degrees Fahrenheit to 100 degrees Fahrenheit and over variations in supply voltages from 105 to 130 volts AC;
(d)
Be operated in such a manner as to avoid, within FCC guidelines or applicable industry standards, causing interference with reception of off-the-air signals by nonsubscribers;
(e)
Be designed, installed and operated so as to comply with all applicable technical standards and regulations promulgated by the FCC or other applicable governmental agency;
(f)
Be designed, installed and operated so as to ensure the delivery to subscribers of standard color and monochrome signals on the FCC-designated Class I television channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the cable television system; and
(g)
Be capable of delivering NTSC color and monochrome signals to standard EIA television receivers, both color and monochrome, and FM receivers, without attachment, except those attachments that would be required to make more than twelve VHF channels receivable. The signals shall be distributed to the receiving sets of individual subscribers without noticeable degradation of color fidelity, picture intelligence, audio distortion or cross-channel interference.
[Ord. 212. Passed 1-22-1985]
The company's charges to subscribers may include an installation and monthly charge for the initial television outlet, additional television outlets and FM outlets (following television installation) and a charge for relocation of a television or FM outlet. There shall be no charge for disconnection from the system. The company shall receive no consideration whatsoever for providing service to subscribers without prior approval of the Board of Supervisors, except for the categories set forth above.
[Ord. 212. Passed 1-22-1985; Ord. 310. Passed 6-20-1994]
(a)
Company Submission. Within 30 days of the date of written notice from the Township to the company, or simultaneously with a proposed rate change, the company shall file its rate justification with the Township.
(b)
Township Response.
(1)
The Township shall make a decision on any proposed rate request within 30 days after the company submits its rate justification. The rates proposed by the company shall automatically take effect after that thirty-day period unless the Township issues a statement that it needs additional time to make its decision.
(2)
If the Township decides that it needs longer than the initial thirty-day period to consider the rate request, it may issue a statement to that effect. Such statement may provide for up to 90 additional days to review a rate request based upon a benchmark approach and up to 150 additional days to review a rate request based upon a cost of service approach.
(3)
If the Township cannot reach a decision by the end of the extended period set forth in the preceding paragraph, the rates proposed by the company shall go into effect, subject to refund. If the Township intends to seek refunds, it shall issue an order to the company prior to expiration of the time period for response, notifying the company to keep accurate records with respect to rates.
(c)
Public Hearing Required. A public hearing shall be held in connection with every rate setting proceeding. At least 10 days prior to the hearing date, the Board shall publish a notice of the hearing in a newspaper of general circulation in the Lower Gwynedd area. The notice shall identify the name of the company, indicate that a rate change has been requested and identify the time and place of the public hearing.
(d)
Proprietary Information. The Township may require the company to furnish proprietary information in connection with any rate setting proceeding.
(e)
Calculation of Rates and Refunds. In setting basic service rates and charges and in setting any refunds, the Township shall be governed by the FCC rate regulations as amended. The FCC rate regulation shall govern notwithstanding any different or inconsistent provisions in the company's contract.
(f)
(g)
Appeals. The FCC shall have exclusive jurisdiction to hear appeals challenging whether the Township's decision is consistent with the Act or any applicable FCC rules. Any participant in a Township's rate regulation proceeding may appeal the Township's decision on such grounds to the FCC within 30 days of release of the public notice required under this chapter.
(h)
Authority Conferred. The Township Manager, or his or her designee, is authorized to execute on behalf of the Township and file with the FCC such certifications, forms or other instruments as are now or may hereafter be required by the FCC rate regulations in order to enable the Township to regulate basic service rates and charges.
[Ord. 212. Passed 1-22-1985]
The company shall interrupt system service after 7:00 a.m. and before 1:00 a.m. of the following day only with good cause and for the shortest time possible and, except in emergency situations, only after publishing notice of a service interruption at least 24 hours in advance of the service interruption. Service may be interrupted between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance and repair, without notification, any night except Friday, Saturday, Sunday or the night preceding a holiday.
[Ord. 212. Passed 1-22-1985]
The company shall make available all subscriber services to all residents of the territory, including ancillary and auxiliary services, provided that the company will not be required to serve any area of the Township that has a population density of less than six homes per mile of cable. However, the company shall provide service to any residence or other building excluded by the foregoing limitation for an installation charge equal to the actual material cost and labor cost involved, such costs to be calculated on a pro rata basis where more than one residence is to be served. Within 18 months after the execution of a contract with the Township, the company shall have completed at least 90% of construction, as measured both in miles of cable and connections to subscribers, with the remaining construction to be completed within six months thereafter. However, the company shall not be responsible for delays caused solely by circumstances beyond its control, such as unusually adverse weather conditions, equipment shortages and the inability to obtain easements.
[Ord. 212. Passed 1-22-1985]
A contract for cable television service shall be for a period of 15 years. The company shall have the option of extending all terms and conditions of such contract for one additional ten-year period by giving the Township written notice of its desire therefor not less than 60 days prior to the termination date of the original term of the contract.
[Ord. 212. Passed 1-22-1985]
(a)
In addition to all other rights and powers pertaining to the Township by virtue of this chapter or otherwise, the Township reserves the right to terminate or cancel the contract, and the company shall forfeit all of its rights and privileges hereunder, if the company does either of the following:
(1)
Violates any of the terms, conditions or provisions of this chapter or the contract, as they may be amended, or fails to comply with any of the provisions of any applicable ordinance of the Township and continues to violate or fail to comply with the same for a period of 30 days after such company has been notified, in writing, by the Township to cease and desist from any such violation or failure to comply, as specified; or
(2)
Becomes insolvent, is unable or unwilling to pay its debts or is adjudged to be bankrupt. The company shall notify the Board of Supervisors at least 30 days prior to the commencement of a bankruptcy proceeding.
(b)
Such termination and forfeiture shall be declared only by written decision of the Board affording the company due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply. The decision of the Board shall be final. If forfeiture is imposed upon the company, it shall be afforded a period of six months within which to sell, transfer or convey its cable television system to a qualified purchaser, approved by the Township, in writing, at fair market value. During this six-month period, which shall run from the effective date of the final decision of the Board imposing forfeiture, the company shall have the right to operate its cable television system pursuant to this chapter.
[Ord. 212. Passed 1-22-1985]
At the expiration of the contract term or upon the termination and cancellation as provided in Section 824.16, the Township may require the Company to remove, at its own expense, any or all portions of the cable television system from the streets or adjacent rights of way within the Township.
[Ord. 212. Passed 1-22-1985]
All of the rights and privileges and all of the obligations, duties and liabilities created by a contract with the Company for a cable television system, and by this chapter, shall pass to and be binding upon the successors and assigns of the Township and the successors and assigns of such Company. However, the Company shall not make any assignment or transfer without the written approval of the Board of Supervisors. Any proposed transferee or assignee of the Company shall be ready, willing and able to accept the covenants of the contract and this chapter and its amendments and shall prove to the satisfaction of the Township (which satisfaction shall not be unreasonably withheld) that it is financially, technically and administratively capable of assuming the rights, obligations, duties and liabilities created by the contract and this chapter. A contract shall not be transferred or assigned by a Company unless and until the cable television system authorized by this chapter is completely constructed and in operation. Notwithstanding the above, this section shall not prevent the assignment of a contract by the Company as security for debt without such approval. Further, the transfer or assignment of a contract between the company and any parent, subsidiary or affiliated (fifty percent or more common ownership) corporation shall be permitted without the prior approval of the Board, provided that the Company remains liable on all obligations under the contract.
[Ord. 212. Passed 1-22-1985]
In consideration of the terms of the contract between the Township and the Company, the Company shall pay the Township a sum of money provided for in Section 208.01(b). This sum shall be calculated and due annually on March 31 of each year and paid within sixty days thereafter. If the FCC increases the maximum percentage fee, then the contract fee thereafter due and payable shall be determined pursuant to such maximum percentage. Upon and simultaneously with the execution of a contract between the Township and the Company, the Company shall pay to the Township the Township's legal fees incurred in drafting this chapter and in drafting and negotiating the contract with the Company, up to a maximum of $2,500. The contract fee shall be in addition to any normal fees and bonds charged by the Township, including, but not limited to, charges for street openings and pole attachments.
[Ord. 212. Passed 1-22-1985]
The Company shall maintain a business office or a toll-free telephone listing in the Township which shall be available seven days per week, for the purpose of receiving inquiries and complaints from its customers and the general public, regarding the installation and quality of service and similar matters. The Company shall furnish each subscriber, at the time service is installed, with written instructions regarding complaint procedure. The Company shall investigate all complaints within five days of their receipt and shall resolve them swiftly and equitably.
[Ord. 212. Passed 1-22-1985]
The Board of Supervisors, or its designated representative, shall have access at all reasonable times and places to the Company's books, records, maps, reports and engineering plans relating to the property of the Company in operation in the Township and the revenues derived therefrom. The Company shall submit to the Township Secretary, within sixty days after the close of the Company's fiscal year, a certified statement of gross receipts and revenues from the Company's service in the Township. Such statement shall be prepared by an independent certified public accountant reasonably acceptable to both the Township and the Company. Any adjustment in the contract fee shall be paid within thirty days thereafter. The Company shall serve on the Township copies of all documents filed with the FCC, the Commonwealth or any other agency of the Federal or State Government pertaining to the cable television system.
[Ord. 212. Passed 1-22-1985]
(a)
The Company shall not initiate or use any form, procedure or device for procuring information or data from a subscriber's terminal by use of the network, without prior valid authorization from each subscriber affected.
(b)
The Company shall not, without prior valid authorization from each subscriber affected, provide any list designating subscribers' names or addresses to any party other than the Township, except as may be required by Home Box Office, PRISM, CNN or other such satellite programming organizations, solely for audit purposes.
(c)
The Company shall not permit the installation of any special terminal equipment in any subscriber's premises that will permit transmission from such subscriber's premises of two-way services utilizing aural, visual or digital signals, without first obtaining written permission therefor from the subscriber.
[Ord. 443. Passed 7-18-200]
(a)
Franchise Granted. The Board of Supervisors hereby authorizes execution of a cable franchise agreement with Verizon Pennsylvania, Inc., specifically a contract entitled "Cable Franchise Agreement between Township of Lower Gwynedd and Verizon Pennsylvania, Inc." ("Verizon Cable Franchise Agreement") granting a nonexclusive franchise to Verizon Pennsylvania, Inc., to construct, install, maintain, extend, and operate a cable communications system in Lower Gwynedd Township in accordance with the terms of said Verizon Cable Franchise Agreement. The appropriate Township officials are hereby authorized to execute all documents deemed reasonably necessary to carry out the Verizon Cable Franchise Agreement.
(b)
Ratification of Existing Cable Franchise Agreements. The Board of Supervisors hereby ratifies all existing cable franchise agreements in Lower Gwynedd Township.
[Added 5-22-2012 by Ord. No. 485]
(a)
Franchise Granted. The Board of Supervisors hereby authorizes execution of the cable franchise agreement with Comcast of Southeast Pennsylvania, LLC and Comcast of Pennsylvania, LLC (hereinafter "Comcast"), specifically a contract entitled "Agreement" between the Township of Lower Gwynedd and Comcast (hereinafter "Comcast Cable Franchise Agreement") granting a nonexclusive franchise to Comcast to install, maintain, extend and operate a cable communication system in Lower Gwynedd Township in accordance with the terms of said Comcast Cable Franchise Agreement. The appropriate Township officials are hereby authorized to execute all documents deemed reasonably necessary to carry out the Comcast Cable Franchise Agreement.
(b)
The Board of Supervisors hereby ratifies all existing cable franchise agreements in Lower Gwynedd Township.