[HISTORY: Adopted by the Board of Supervisors of the Township
of Easttown 7-18-2005 by Ord. No. 364A-05. Amendments noted
where applicable.]
This chapter shall be known and may be cited as the "Easttown
Township Cable Television Ordinance."
A.
Upon application duly made, the Township of Easttown may grant the
right to erect, maintain and operate cable television transmission
and distribution facilities and additions thereof in, under, over,
along, across and upon the streets, lanes, avenues, sidewalks, alleys
and other public places in the Township of Easttown (hereinafter referred
to as the "Township") and subsequent additions thereof, for the purpose
of transmission and distribution of audio and visual impulses and
television energy in accordance with the laws and regulations of the
United States of America, of the Commonwealth of Pennsylvania and
of the Township. The Township may promulgate a form for the making
of application pursuant hereto, and in the event that such a form
is promulgated, then application shall be made only on such form.
Any right granted pursuant to this chapter shall be conditioned on
the faithful performance and observance of the conditions, regulations
and reservations herein specified and shall further be conditioned
upon the prompt payments of the amounts provided for herein.
B.
Notwithstanding any other provisions or terms of this chapter, and
to the extent permitted by federal or state law, the Township shall
apply the requirements of this chapter to similarly situated users
or occupiers of the streets, lanes, avenues, sidewalks, alleys and
other public places in the Township.
Whenever used in this chapter, the following terms shall have
the meanings indicated:
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service, or as "cable service" is otherwise now
or hereafter defined by applicable state or federal law or regulation.
A.
To the extent possible, all facilities erected, maintained or operated
pursuant to this chapter shall be attached to poles already in existence
in the Township. To the extent that existing poles are insufficient
for the purposes hereof, or if anyone being granted the right hereunder
(hereinafter referred to as "licensee") is unable to negotiate agreements
satisfactory to the licensee providing for use of existing poles,
the licensee shall have the right to erect and maintain its own poles
as necessary for the construction and maintenance of its television
distribution system, with the approval of locating such poles by the
Township Engineer; provided, however, that the approval of the Township
Engineer shall not be granted for the installation of such poles when,
in the professional opinion of the Township Engineer, the installation
of such new transmission facilities underground is feasible, considering
engineering criteria only, and provided further that all residential
areas of the Township which are served by underground electrical utilities
shall be served only by underground transmission and distribution
facilities. Otherwise, the approval of the Township Engineer shall
not be unreasonably withheld.
B.
The licensee shall have the right, authority, power and privilege
to attach any of its system facilities to any existing or future poles,
towers or other electrical facilities owned by the Township in a manner
which will not interfere with the use of such poles, towers and other
electrical facilities by the Township, provided that no such attachment
shall take place unless 72 hours' prior notice has been given
to the Township and the Township has failed to object to such attachment.
The Township shall not unreasonably object to any such attachment.
C.
The licensee shall pay to the Township an annual fee for each pole
utilized by the licensee owned by the Township, which fee shall not
be less than $1.50 per pole. If the licensee shall negotiate a contract
with other entities for the use of their poles, then the annual fee
payable hereunder shall be the same as the fee payable pursuant to
such negotiated contracts, but not less than the minimum as aforesaid.
D.
In the event that the licensee negotiates a contract fee per year
per pole with other entities, providing for different fees to each
of those entities, the annual fee per pole payable to the Township
for each pole owned by the Township and utilized by the licensee shall
be the higher of the two negotiated contract fees, subject to the
minimum as aforesaid.
E.
In the event that the licensee does not negotiate an agreement for
the use of the poles of other entities, the fee payable by the licensee
to the Township shall be the minimum as aforesaid, an annual fee of
$1.50 for each pole owned by the Township and utilized by the licensee.
In the event that a licensee shall use a pole for less than a full
year, then the charge for such pole shall be prorated from the day
when the use of the pole began.
F.
The Township hereby states its desire that all holders of public
licenses and franchises within the corporate limits of the Township
shall cooperate with every licensee hereunder to allow usage of existing
poles and pole line facilities wherever possible and wherever such
usage does not interfere with the normal operation of said pole and
pole line so that the number of new or additional poles constructed
in the Township shall be minimized.
G.
Each licensee shall extend to the Township, free of any expense,
joint use of any and all poles owned by any licensee for any proper
Township purpose insofar as may be accomplished without interference
with the use and enjoyment of the licensee's own or other preexisting
wires and fixtures. The Township shall hold each licensee harmless
from any and all action, causes of action or damage caused by any
action of the Township in placing wires or appurtenances upon the
poles of the licensee.
[Amended 12-15-2014 by Ord. No. 424-14]
H.
Insofar as it is within the power of the Township to grant the following
right, the approval of any application made hereunder shall grant
to the licensee whose application is approved the authority to trim
trees upon and overhanging all streets, alleys, easements, sidewalks
and other public places within the Township, so as to prevent the
branches of such trees from coming into contact with the facilities
of the licensee.
I.
The Township shall condition approval of any application, either
at the time application is made or at the time of renewal application,
upon the licensee making cable service available to all areas of the
Township that have a density of at least 35 dwelling units per mile
of extension from the licensee's then-existing cable distribution
facilities.
J.
Each licensee shall provide to subscribers a diversity of programming
services. Any system installed, constructed, upgraded or reconstructed
shall be materially equivalent to that provided to other municipalities
served by the licensee within the County of Chester.
K.
Use of channel capacity for public, educational and governmental
("PEG") access shall be provided by the licensee in accordance with
the Cable Communications Policy Act ("Cable Act"), as amended, at
Section 611,[1] and as further set forth below. Upon written request of
the Township, the licensee shall nonexclusively reserve for noncommercial
educational and governmental uses, without charge, a minimum of two
channels for PEG use, delivering a signal, the technical quality of
which is equivalent to the technical quality of other channels on
the system. The licensee and the Township may evaluate from time to
time the need for provision of additional PEG access channels. When
additional PEG access channels are deemed necessary by agreement between
the Township and the licensee after an evaluation, the licensee shall
reserve the same for PEG use. Nothing herein shall require the Township
to offer any programming described herein unless the Township so authorizes.
Further, nothing herein shall require the licensee to provide more
than the use of two channels for noncommercial PEG programming absent
agreement between the Township and the licensee. Nothing in this chapter
or any prior franchise agreement is or was intended to confer third-party
beneficiary status of any member of the public to enforce the terms
of this chapter or a franchise granted to the licensee.
(1)
Because blank or underutilized PEG channels are not in the public
interest, in the event the Township elects to not fully program the
channel(s), the licensee may program unused time on those channels
in accordance with the Cable Act, subject to reclamation by the Township
upon no less than 60 days' notice.
(2)
The licensee does not relinquish its ownership of or ultimate right
of control over a channel location by designating it for PEG use.
A PEG access user, whether an individual, educational or government
user, acquires no property or other interest by virtue of the use
of a channel so designated and may not rely on the continued use of
a particular channel number, no matter how long the same channel may
have been designated for such use.
[1]
Editor's Note: See 47 U.S.C. § 521 et seq.
L.
The licensee shall provide free basic and standard cable service
and free installation at a minimum of one outlet to each Township-owned
or -leased building designed for occupation and located within the
Township, as well as all Township accessory buildings or structures,
if said accessory buildings or structures are within 150 feet of the
primary Township building. The licensee shall provide the Township
with one complimentary high-speed internet connection and service
at one Township building as selected by the Township.
(1)
The licensee shall further provide free basic and standard cable
service and free installation at a minimum of one outlet to any fire
department, police department, ambulance service, or public library
located within the Township and within 125 feet of the licensee's
distribution line.
(2)
In addition, the licensee shall provide free basic and standard cable
service and free installation at one outlet to each public K-12 school
and each nonpublic K-12 school that receives funding pursuant to Title
I of the Elementary and Secondary Education Act of 1965, 20 U.S.C.
§ 6301 et seq., as amended, not including home schools,
located within the Township and within 125 feet of the licensee's
distribution line.
M.
The licensee shall meet or exceed customer service standards as set
forth in Part 76 of the FCC regulations, 47 CFR 76.309, as amended,
and any other applicable FCC customer service standards or requirements.
A.
All structures, lines and equipment erected by any licensee within
the Township shall be located so as to minimize or eliminate, if possible,
interference with the use of streets, alleys, easements and other
public ways and places and with the rights and reasonable convenience
of property owners, and each licensee shall comply with all ordinances
of the Township now or hereafter in force.
B.
In case of any disturbance of pavement, sidewalk, driveway or other
surface, the licensee shall, at its own expense and in a manner approved
by the Township, remove, replace and restore all pavement, sidewalk,
driveway or surface so disturbed to as good a condition as before
any such disturbance.
C.
In the event that the Township shall at any time lawfully elect to
alter or change any street, alley or other public way requiring the
relocation of any of the facilities of any licensee, upon reasonable
notice, the licensee shall remove and relocate any such facilities
at the licensee's own expense.
D.
Whenever it shall be necessary for any licensee to raise or lower
its lines to permit the moving of any building or other structure,
the licensee shall accomplish the same upon the request of any person
lawfully entitled to move such building or other structure. The actual
expense of raising or lowering or temporarily removing the licensee's
lines shall be paid by the person requesting the same, and the licensee
shall have the right to require payment in advance of the reasonably
estimated cost of such raising, lowering or temporary removal. If
it shall be necessary for Township purposes and shall be done at the
request of the Township, then such raising, lowering or temporary
removal shall be accomplished by the licensee at no charge to the
Township.
E.
All poles, lines, structures and other facilities of the licensee
in, on, over or under the streets, sidewalks, alleys, easements and
other public grounds or places within the Township shall be maintained
at all times by the licensee in a safe and appropriate condition.
A.
Nothing herein contained shall be deemed to render any licensee a
public utility, except as may be otherwise provided by the laws of
the Commonwealth of Pennsylvania.
B.
Each licensee shall maintain and operate its system and render service
in accordance with this chapter and any grant of franchise or license
authorized herein.
C.
Whenever it is necessary to shut off or interrupt service for the
purpose of making repairs, installations or adjustments, the licensee
shall do so at such time as will cause the least amount of inconvenience
to its customers, consistent with the needs and requirements of the
licensee.
D.
Each licensee shall maintain a customer service telephone number,
which shall be toll-free to the caller for calls originating from
within Easttown Township, for the purposes of receiving inquiries
and complaints from the licensee's customers and from the general
public. Each licensee shall provide sufficient maintenance personnel
to respond to routine service calls during normal business hours,
seven days per week, except in the case of major outages due to storms,
civil unrest or acts of God. Upon written request, each licensee shall
report to the Township Manager of Easttown Township as to compliance
with Part 76 of the FCC regulations, 47 CFR 76.309, as amended, and
any other applicable FCC customer service standards or requirements.
A.
Throughout the term of any franchise agreement granted under this
chapter, the licensee shall, at its own cost and expense, maintain
comprehensive general liability insurance and provide the Township
with certificates of insurance designating the Township and its officers,
boards, commissions, councils, elected officials, agents and employees
as additional insureds and demonstrating that the licensee has obtained
the insurance required in this section.
B.
Such policy or policies shall be in the minimum amount of $1,000,000
for bodily injury or death to any one person, $1,000,000 for bodily
injury or death of any two or more persons resulting from one occurrence,
and $1,000,000 for property damage resulting from any one accident.
Such policy or policies shall be noncancelable except upon 30 days'
prior written notice of the Township. The licensee shall provide workers'
compensation coverage in accordance with applicable law.
The licensee shall have the right to charge and collect compensation
from all subscribers to whom it shall furnish service, but the licensee
shall not, as to rate, charges, service, facilities, rules and regulations
or any other respect, make or grant any preference or advantage to
any person or subject any person to any prejudice or disadvantage,
but nothing herein contained shall be deemed to prohibit the establishment
of a graduated scale of charges and classified rate schedules, provided
that the classification of customers shall be reasonable, and any
customer coming within a particular classification shall be entitled
to the same rates as any other customer coming within that classification.
Rates shall be the same for all classifications of customers served
by the licensee from similar facilities. Nothing herein contained
shall prevent any licensee from providing a preferential rate or free
service to the Township or for any public purpose.
Rights granted to any licensee hereunder shall take effect and
be in full force from and after the date upon which each application
is approved by the Township. The length of franchise awarded to the
licensee shall not exceed 15 years. Renewal rights shall be controlled
by the Cable Act or other applicable law.
A.
In the event the Township believes that the licensee has not complied
with the material terms of this chapter, it shall notify the licensee
in writing, with specific details regarding the exact nature of the
alleged noncompliance or default. The licensee shall have 60 days
from the receipt of the Township's written notice to respond
to the Township, contesting the assertion of noncompliance or default;
or to cure such default; or, in the event that, by nature of the default,
such default cannot be cured within the sixty-day period, initiate
reasonable steps to remedy such default and notify the Township of
the steps being taken and the projected date that they will be completed.
B.
In the event of alleged noncompliance or default that the Township
asserts is grounds for revocation of the licensee's rights to
operate under a grant of license, and the licensee fails to respond
to the Township's notice or the alleged default is not remedied
within 60 days or the date projected by the licensee, the Township
shall schedule a public hearing to investigate the noncompliance and
determine whether revocation of the license is warranted. Such public
hearing shall be held at the next regularly scheduled meeting of the
Township that is scheduled at a time that is no less than 10 business
days therefrom. The Township shall notify the grantee in writing of
the time and place of such meeting and provide the grantee with a
reasonable opportunity to be heard. The decision of the Township shall
be in writing and shall be delivered to the licensee by certified
mail. The licensee may appeal such determination to an appropriate
court, which shall have the power to review the decision of the Township
de novo and to modify or reverse such decision as justice may require.
Such appeal to the appropriate court must be taken within 60 days
of the issuance of the determination of the Township.[1]
A licensee shall, at its sole cost and expense, indemnify, hold
harmless, and defend the Township, its officials, boards, commissions,
commissioners, agents, and employees against any and all claims, suits,
causes of action, proceedings, and judgments for damages or equitable
relief arising out of the construction, maintenance, or operation
of its system, the conduct of the licensee's business in the
Township, or in any way arising out of the licensee's enjoyment
or exercise of a franchise granted hereunder, regardless of whether
the act or omission complained of is authorized, allowed, or prohibited
by this chapter or a franchise agreement, provided that the Township
shall give the licensee written notice of its obligation to indemnify
and defend the Township within 10 business days of receipt of a claim
or action pursuant to this section. This provision includes, but is
not limited to, the Township's reasonable attorneys' fees
incurred in defending against any such claim, suit, or proceeding.
If the licensee fully undertakes and does in fact indemnify and defend
the Township, but the Township nonetheless determines that it is necessary
for it to employ separate counsel, the costs for such separate counsel
shall be the responsibility of the Township.
A.
Each licensee shall pay to the Township a franchise fee in an amount
no less than 5% of the licensee's gross annual revenues calculated
in accordance with generally accepted accounting principles (GAAP)
and derived by the licensee from the provision of monthly basic, standard,
premium, pay-per-view, video-on-demand, and digital cable or similar
services or programming provided as cable service in the Township,
installation fees, subscriber equipment rental fees, revenues from
home shopping or similar channels, and advertising revenues attributable
to cable service in the Township (prorated on the basis of the proportion
of the number of subscribers within the Township to the total number
of subscribers served by the licensee's system) or, if the Township
elects, in its discretion, any other percentage of gross revenues
up to the maximum amount permitted under applicable federal law. In
the event the Township elects to change the franchise fee permitted
herein, it shall do so not more than once in a calendar year and upon
sixty-day written notice to the licensee.
B.
The franchise fee is in addition to all other taxes and payments
that the licensee may be required to pay under any federal, state,
or local law and to any other tax, fee, or assessment imposed by the
licensee for use of their services, facilities or equipment.
C.
Payment of the franchise fee shall not be considered in the nature
of a tax.
D.
No acceptance of any payment by the Township shall be construed as
a release or an accord and satisfaction of any claim the Township
may have for further or additional sums payable as a franchise fee
under this chapter or for the performance of any other obligation
of the licensee.
E.
In the event any franchise fee payment or recomputation amount is
not made on or before the date specified herein, the licensee shall
pay interest charges computed from such due date, at an annual rate
equal to 5%.
F.
The franchise fee shall be paid quarterly to the Township and shall
commence as of the effective date of the franchise, unless otherwise
agreed in the franchise agreement. The Township shall be furnished
at the time of each payment with a statement verified by a representative
of the licensee showing the calculation of franchise fees in accordance
with GAAP and based on gross revenues received from the operation
of the system to provide cable service in the Township. Quarterly
payments shall be made to the Township no later than within 45 days
of March 30, June 30, September 30, and within 60 days of December
31. Quarterly computation dates are the last days of the months of
March, June, September and December.
G.
The Township shall have the right to inspect and copy the licensee's
records (subject to reasonable proprietary limitations) and the right
to audit and to recompute any amounts determined to be payable under
this chapter for a period of three years from the date of payment.
Audits shall be at the expense of the Township, unless the audit discloses
an underpayment in excess of 5%, in which case the costs of the audit
shall be borne by the licensee as a cost incidental to the enforcement
of the licensee.
H.
Upon the completion of any such audit by the Township, the Township
shall provide to the licensee a final report setting forth the Township's
findings in detail, including any and all substantiating documentation.
In the event of an alleged underpayment, the licensee shall have 30
days from the receipt of the report to provide the Township with a
written response agreeing to or refuting the results of the audit,
including any substantiating documentation. Based on these reports
and responses, the parties shall agree upon a final settlement amount.
For purposes of this section, the term "final settlement amount" shall
mean the agreed-upon underpayment, if any, to the Township by the
licensee as a result of any such audit. If the parties cannot agree
on a final settlement amount, the parties shall submit the dispute
to a mutually agreed upon mediator within 60 days of reaching an impasse.
In the event an agreement is not reached at mediation, either party
may bring an action to have the disputed amount determined by a court
of law.
I.
Any final settlement amount(s) due to the Township as a result of
such audit shall be paid to the Township by the licensee within 30
days from the date the parties agree upon the final settlement amount.
Once the parties agree upon a final settlement amount and such amount
is paid by the licensee, the Township shall have no further rights
to audit or challenge the payment for that period.
Nothing herein contained shall be deemed to render any right
granted hereunder to be exclusive to any licensee.
Neither the licensee or any other person may transfer the cable
system or the franchise without the prior written consent of the Township,
which consent shall not be unreasonably withheld or delayed. No change
in control of the licensee, defined as an acquisition of 50% or greater
ownership interest in the licensee, shall take place without the prior
written consent of the Township, which consent shall not be unreasonably
withheld or delayed. No such consent shall be required, however, for
a transfer in trust, by mortgage, hypothecation, or by assignment
of any rights, title, interest of the licensee in the franchise or
in the cable system in order to secure indebtedness; or a transfer
to any entity owned and/or controlled by the licensee or the licensee's
parent company. Within 30 days of receiving a request for transfer,
the Township shall, in accordance with FCC rules and regulations,
notify the licensee in writing of the information it requires to determine
the legal, financial and technical qualifications of the transferee.
Any person who violates or permits a violation of this chapter
shall, upon being found liable therefor in a civil enforcement proceeding
commenced by the Township before a Magisterial District Judge, pay
a fine of not more than $600, plus all court costs, including reasonable
attorneys' fees, incurred by the Township in the enforcement of this
chapter. No judgment shall be imposed until the date of the determination
of the violation by the Magisterial District Judge. If the defendant
neither pays nor timely appeals the judgment, the Township may enforce
the judgment pursuant to the applicable Rules of Civil Procedure.
Each day a violation exists shall constitute a separate offense. Further,
the appropriate officers or agents of the Township are hereby authorized
to seek equitable relief, including injunction, to enforce compliance
herewith.
