[HISTORY: Adopted by the Borough Council of the Borough of Walnutport as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-8-1965 by Ord. No. 166 (Ch. 8, Part 1, of the 1983 Code of Ordinances)]
Whenever said Company shall desire to erect, lay down or construct any conduits, mains or pipes or other appliances, it shall present a plan or plans showing the location, number and size thereof to the Borough Council to approve or disapprove as to location, which plan or plans, or copy thereof, with approval endorsed thereon, shall be filed with the Secretary of Council before any work thereon is started. In case said Council disapproves any plan or plans, it shall designate thereon, by use of appropriate words or marks, or both, some other location suitable for the purpose of said Company.
Such conduits, mains and pipes shall be constructed and maintained in a workmanlike manner and said Gas Corporation shall promptly replace and properly restore any street or sidewalk that may be damaged or displaced in the construction of maintenance of its system, in accordance with specifications and ordinances of the Borough.
Said Company shall maintain all conduits, mains and pipes and other appliances erected or constructed under provisions of this ordinance in good and safe order and condition, and shall at all time fully indemnify, protect and save harmless said Borough from and against all actions, claims, suits, damages and charges, and against all loss and necessary expenditures arising from the erection, construction and maintenance of its system or from its neglect or failure to maintain said appliances in good and safe order and condition.
Said Company shall be governed by all legal ordinances of a general nature affecting its operation in the Borough of Walnutport that are now in force and enacted under and by virtue of the police powers of said Borough or the laws of the state, as well as all such ordinances hereafter so enacted; provided, the terms, conditions and regulations prescribed therein do not impair or abridge the permission contained in this ordinance.
The permission and consent hereby granted shall extend to said Slatington Gas Corporation, its successors, assigns and lessees.
[1]
Editor's Note: Slatington Gas Corporation and this franchise have been acquired by U.G.I.
This ordinance shall take effect at the expiration of 30 days from the date when a copy thereof shall have been filed in the office of the Secretary of the Pennsylvania Public Utility Commission; provided, that if said Commission shall, prior to the expiration of such period, institute a proceeding under the provision of § 901 of the Public Utility Law affecting its validity,[1] this ordinance shall become effective only upon approval by said Commission.
[1]
Editor's Note: See 66 Pa.C.S.A. § 901.
Said Company shall, under its seal and by its proper officers, within 60 days from the date of the final enactment of this ordinance, signify in writing its acceptance of all the terms, conditions, regulations and restrictions herein contained, in default of which this ordinance shall become null and void and of no effect.
All legal advertising or printing fees incurred by the Borough of Walnutport, County of Northampton, State of Pennsylvania, in connection with the passage of this ordinance shall be paid by said Company.
The Borough of Walnutport expressly reserves unto itself the right to impose license, franchise, fees, or other such levies upon the owner or operator of such gas business.
Upon failure of said Slatington Gas Corporation and/or its assigns within two years from date of the approval of this ordinance to furnish gas to such persons, partnerships, or corporations residing within the limits of said Borough who may desire to use same, and who are willing to comply with the rules and regulations applying thereto, then and in such case, this ordinance and the rights and privileges and franchise hereby granted shall become absolutely null and void.
The life of this ordinance granting to the Slatington Gas Corporation the franchise herein set forth shall be for the period of 50 years from the date of its approval.
[Adopted 11-12-1975 by Ord. No. 75-2 (Ch. 8, Part 2, of the 1983 Code of Ordinances)]
This ordinance shall be known and may be cited as the "Borough Community Antenna Television Franchise Ordinance."
As used in this ordinance, the following terms shall have the meanings indicated:
BOROUGH
The Borough of Walnutport, Northampton County, Pennsylvania.
COMMUNITY ANTENNA TELEVISION (CATV)
An arrangement or combination of apparatus whereby television signals broadcast over the air are received at one or more towers, antennas or other devices from television stations licensed by the Federal Communications Commission and other information sources and which for a consideration are transmitted by means of a coaxial cable or other suitable device to television receiving sets or subscribers to such service.
COMPANY
Blue Ridge Cable Television Inc., the grantee of rights under this franchise.[1]
COUNCIL
The governing body of the Borough of Walnutport, Northampton County, Pennsylvania.
PERSON and APPLICANT
Any person, firm, partnership, association, corporation, company or organization of any kind.
STREETS
Includes all public streets, ways, alleys and parkways owned by or under the jurisdiction of the Borough of Walnutport, Northampton County, Pennsylvania.
[1]
Editor's Note: RCN Telecom Services, LLC, also has a franchise agreement with the Borough.
There is hereby granted by the Borough to the Company a nonexclusive franchise to construct a community antenna television system (CATV) for television-related services as may be prescribed or permitted by the Federal Communications Commission and to use poles, wires, conduits and appurtenances under, along, across or upon any or all public streets, ways, alleys, or parkways, as the same now or may hereafter exist with the Borough of Walnutport and within the boundaries of said Borough of Walnutport as the same may hereafter be extended for transmitting and distributing electricity and electrical impulses and signals for television purposes, namely to produce reproduction of sights and sounds in combination to the residents of the Borough of Walnutport, upon the terms and conditions and subject to the limitations herein set forth.
Upon the annexation of any territory to the Borough, the portion of any said utility that may be located or operated within said territory, upon the streets, alleys or public ways thereof, shall thereafter be subject to all the terms of this franchise as though it were an extension made thereunder.
The Company shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power by the Borough, and to such reasonable regulations as the Borough shall hereafter by resolution or ordinance provide.
Company shall indemnify and save the Borough and its agents and employees harmless from all and any claims for personal injuries or property damages, and any other claims and costs, including attorneys' fees, expenses of investigation and litigation of claims and suits thereon which may arise from the installation and/or operation of Company's television antenna system or any equipment of the Company. In case suit shall be filed against the Borough, either independently or jointly with said Company, to recover for any said claim or damages, said Company, upon notice to it by said Borough, shall defend said Borough, its agents and employees, against said action, and, in the event of a final judgment being obtained against said Borough either independently or jointly with said Company, the Company will pay said judgment and all costs and hold the Borough harmless therefrom. For this purpose, Company shall carry and at all times maintain or file with the Secretary of the Borough of Walnutport and at all times keep in force, a public liability policy or policies in the name of Company and the Borough as their respective interests may appear, insuring Company and the Borough against any and all liability arising from the installation and/or operation of said system, which policy or policies shall be approved by the Solicitor of the Borough. Such liability policy or policies shall be in the sum of $100,000 for damage to property in any one accident, and not less than $100,000 for injury or death to any one person, and not less than the sum of $200,000 for death or injury to all persons affected by any one accident. Such policies of insurance shall be issued by a company licensed to do business in the Commonwealth of Pennsylvania. The Company shall also carry workmen's compensation coverage for all of its employees subject to such coverage, and shall annually submit to the Secretary of the Borough a certificate of insurance showing that workmen's compensation coverage is in effect. The Company shall also annually submit to the Secretary of the Borough a certificate of insurance showing that all insurance coverage required by this ordinance is in effect.
[Amended 3-9-1977 by Ord. No. 77-2]
A. 
The Company shall annually pay a franchise fee to the Borough during the life of this franchise, said fee to be 2% of the gross annual receipts of the Company arising within the Borough from monthly subscriber service charges only; said fee being for the regulation and privilege of using the streets and alleys of the Borough for the operation of its system. The franchise fee shall be due and payable on the first day of April of each and every year hereafter.
B. 
Said franchise fee may be reviewed by the Borough every five years. After reviewing, if the Borough deems it necessary it may raise said fee, but in no instance could said fee ever be raised to a higher amount than any fee the Company might be paying to any other municipality located in either Lehigh, Northampton, Carbon or Monroe County. Further, in no event will the franchise fee exceed the maximum amount permitted by the Federal Communications Commission or the Commonwealth of Pennsylvania.
[Amended 3-9-1977 by Ord. No. 77-2]
The Company shall during the continuance of this franchise provide facilities and service sufficient to meet the needs of the public welfare, and shall maintain its facilities and service up to date and in keeping with technical progress. Company shall maintain and operate its system and render efficient service on a minimum of seven TV channels and in accordance with rules and regulations as are, or in the future may be, set forth by the Council of the Borough. The system shall be installed and maintained in accordance with good engineering practices, and any spurious electromagnetic radiation must fall within the limits specified by the Federal Communications Commission. All construction must be done in a good and workmanlike manner free of obvious defects which may be a hazard to life and limb, and in conformance with the standards as set forth in the National Electric Safety Code.
A. 
Notice of interruption for repairs. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the Company shall do so at such time as shall cause the least amount of inconvenience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to its customers.
B. 
Continuous service. Company service shall be continuous daily during the regular telecast operating hours of the stations whose TV broadcasts are being transmitted.
C. 
Nondiscrimination of service. The Company shall serve any person residing in or owning property in the Borough desiring service who shall pay the charges hereafter enumerated.
D. 
Interference. The Company shall at all times operate the community system so as not to adversely affect or interfere with existing radio and television reception and shall prevent radiation from Company's cables to antennas located in Borough.
E. 
The Company shall immediately investigate and resolve all service complaints and equipment malfunctions. The Company shall maintain a business office or toll-free telephone listing in the Township for the purpose of receiving inquiries and complaints from its customers. The Secretary of the Borough is designated as having primary responsibility for receiving and acting upon any unresolved complaints. Written notice of the complaint procedures must be given to each subscriber at the time of initial subscription to the cable system.
[Amended 3-21-1983 by Ord. No. 83-2; 7-12-2001 by Ord. No. 2001-07]
Rates shall be governed by the Federal Communications Commission rules.
The sole stockholder of the Company is presently Pencor Services, Inc. The Company shall not sell, transfer or assign this franchise nor shall its owners transfer majority ownership of their stock of said Company, unless to one of its wholly owned subsidiaries, without the approval of the Council which said approval will not be unreasonably withheld. Provided, further, that no sale or transfer shall be effective until the vendee, assignee or lessee has filed with the Borough Secretary, an instrument accepting the terms of the franchise and agreeing to perform all the conditions thereof.
A. 
Use. All transmission and distribution structures, lines and equipment erected by the Company within the Borough shall be located with the approval of the Council and shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin the streets, alleys, or other public ways and places.
B. 
Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense and in a manner approved by the Council, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced and shall maintain the restoration in improved condition for one year.
C. 
Relocation. In the event that at any time during this franchise the Borough shall lawfully elect to alter or change the location or grade of any street, alley or other public way or if in the opinion of the Council a pole or pole line interferes with the necessary convenience of the Borough or a property owner, then, upon reasonable notice by the Borough, the Company shall remove, relay and relocate its poles, wires and cables or other television fixtures at its own expense.
D. 
Placement of fixtures.
(1) 
It is to be the general policy of the Borough and it is understood by Company that where distribution lines are to be installed along any public street, the same shall preferably be attached to existing utility poles rather than to additional poles placed by Company, and that where poles are to be placed in alleys, the same shall be located whenever possible on the same side of the alley as existing utility poles. It is understood and agreed that this restriction and limitation shall extend to any and all streets within the limits of the Borough, even though some of said streets may be part of the state highway systems, special exception or exceptions may be granted to Company by the Council upon written application to it by Company, but said exceptions shall be for good cause shown.
(2) 
Before Company sets poles or constructs any structure on Borough property, it shall file with the Borough detailed specifications showing the location, height and dimensions of the poles or structures to be erected. The poles or structures shall not be erected thereafter until such specifications shall be approved in writing by the Council and the Pennsylvania Department of Transportation has issued a license when and if required. All wires, cables and other overhead equipment shall be at such minimum heights as are or may be required of telephone or power lines by the Public Utility Commission of Pennsylvania or the Pennsylvania Department of Transportation.
(3) 
Where the Council of the Borough are uncertain as to the exact location of the limits of the right-of-way of any street or alley, then in its discretion it may require the same to be surveyed by a surveyor selected by it, the cost of said survey to be paid by Company.
E. 
Tree trimming. The Company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with wires and cables of the Company, all trimming to be done under the supervision and direction of the Council and at the expense of the Company.
F. 
Use of poles and fixtures. The Company agrees that it will furnish a copy of any contract entered into with any utility for the use of their poles by the Company and setting forth the terms, conditions and duration of said contract.
G. 
Removal of wires and installation from premises of subscriber. The Company shall, on request of any subscriber, promptly remove all wires and installations from the premises of such subscriber.
H. 
Removal of wire, poles and installations from Borough streets. The Company shall remove or cause to be removed from the streets, alleys and public ways of the Borough of Walnutport and from all public property all of the wires, poles and installations of any kind or nature whatsoever which have been installed under the authority of this franchise upon the termination of this franchise, the cessation of operation under this franchise by the Company, its successors or assigns, for any reason whatsoever, or the forfeiture of this franchise under the provisions of § A460-26 herein. In order to insure the performance of this provision, and the provisions, terms and conditions of this ordinance, the Company shall post an adequate performance bond and continue the same in effect during the term of this franchise, said bond to be in the amount of $5,000 in favor of the Borough and with surety or sureties thereon to be approved by the Borough, the bond to be approved as to form by the Borough Solicitor.
The Council, their Treasurer, Solicitor, auditors or accountant shall have the right at reasonable times to inspect the books and records of the Company for the purpose of verifying the statement of rentals received.
[Amended 2-14-1991 by Ord. No. 91-1; 7-12-2001 by Ord. No. 2001-07; 1-13-2011 by Ord. No. 2011-02]
The franchise and rights granted herein shall take effect as of February 14, 2011, and shall continue in full force and effect for a period of 10 years thereafter. At the option of the Company and with the prior approval of the Council, upon review of the qualifications, the franchise may be extended for additional terms, each of 10 years. Any modifications of 76.31 of the Rules of the Federal Communications Commission shall be incorporated into this franchise ordinance within one year of adoption, or at the time of franchise renewal, whichever occurs first.
The Company shall assume the cost of publication of this ordinance as such publication is required by law. A bill for publication costs shall be presented to the Company by the Secretary of the Borough and upon Company's filing of acceptance shall be paid at that time.
The Council may at any time declare a forfeiture of this grant for violation or default by the Company of any of the terms thereof; provided, that none of the terms of this grant shall be deemed to be violated so as to permit such forfeiture unless the Company shall first be given notice by the Borough of such violation or default and of the attempt to declare a forfeiture and thereafter if such violation or default shall continue for a period of more than 90 days all the rights and privileges of said Company under the provisions of this ordinance may be forthwith declared forfeited and revoked. If any action shall be instituted or prosecuted directly or indirectly by the Company, or by its stockholders, or creditors, to set aside or have declared void any terms of this grant, the whole of this grant may be thereupon forfeited and annulled at the option of the Council, to be expressed by ordinance. Provided, however, the Company shall not be deemed to be in default for performance of any provision of this grant, nor shall any forfeiture be invoked for any violation or failure to perform any provision hereof due to strikes, lockouts, insurrections, acts of God, or any cause beyond the control of the Company.
Whenever, by the terms of this ordinance notice is required to be given by the Borough to the Company, it may be given by delivering to an officer of the Company a paper writing thereof during the ordinary business hours at the principal office of the Company. Whenever the Company is required to give notice to the Borough, it shall do so by leaving or delivering a paper writing thereof at the office of the Secretary of the Borough during ordinary business hours.
The Company will hold the Borough harmless from the alleged violation of any utility franchise previously granted by the Borough. The granting of a franchise under this ordinance shall not be construed as any undertaking or guarantee of the efficiency of the Company or maintenance of the service of Company. The Borough assumes no responsibility for the acts or omissions of the Company other than to require compliance with this ordinance.
Should any section or part of any section of this ordinance, for any reason, be declared void or invalid, the remainder of said article shall not be affected thereby.
This grant is made upon the express condition that the Company within 30 days after this ordinance takes effect and becomes operative, shall file with the Secretary of Borough a written acceptance of the same, and when this ordinance shall have been accepted by the Company, such ordinance and acceptance shall constitute a contract between the Borough and the Company for all the uses, services and purposes set forth in this ordinance, and the Company by its acceptance of the provisions of this ordinance binds itself to provide the necessary television antenna system and to establish, operate and maintain the local television antenna system contemplated in this ordinance, continuing without substantial interruption except for causes beyond its control until the expiration of the term of this grant. In the event that said Company fails to file said written acceptance within the time hereinbefore specified, this grant, together with any rights or liabilities arising out of the proposal heretofore made for the furnishing of an adequate television antenna system for the benefit of inhabitants of said Borough, and the acceptance of such proposal by the Borough, shall be of no effect and void.
CATV service under this franchise shall be extended to new subscribers within six months of a proper request (excluding those areas with a population density of less than 20 homes per mile).