A. Grant. In the event that Borough shall grant to the 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 the franchise.
The franchise shall include by reference those provisions of the grantee's
"Application for Franchise" that are finally negotiated and accepted
by the Borough and grantee.
B. Event of conflict. The franchise shall be granted under the terms
and conditions contained herein, consistent with the Borough's
Charter and/or other applicable statutory requirements. In the event
of conflict between the terms and conditions of this chapter, the
franchise, or the terms and conditions on which the Borough can grant
a franchise, the Charter and/or statutory requirements shall control.
C. General Borough ordinances. Any franchise granted by the Borough
is hereby made subject to the general ordinance 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.
The franchise area shall be the entire Borough, or portions
thereof, for which a franchise is granted.
For the purpose of operating and maintaining a cable communications
system in the Borough, the grantee may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under, upon,
across and along the public streets and ways within the Borough such
wires, cables, 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 local ordinances.
In the event that a grantee chooses to utilize Borough-owned
conduit or other facilities for any portion of its cable communications
system, the consideration for the use of Borough conduit or other
facilities shall be at charges to be agreed upon between the parties.
No poles or pedestals shall be erected by the 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 upon the poles owned by the grantee, any wire
and pole fixtures that do not unreasonably interfere with the cable
system operations of the grantee. The Borough shall reimburse the
grantee for any make-ready costs. The use of grantee's poles
shall be at a fair and reasonable rate.
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 granted pursuant to this chapter shall
be stated in the franchise.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The Borough specifically reserves the right to: (a) grant at any time
such additional franchises for a cable communication system as it
deems appropriate; and/or (b) build, operate, and own such cable communication
system or systems as it deems appropriate. Subject to applicable law
and regulation, any additional cable communications system franchises
granted by the Borough shall, to the extent practicable, seek to create
a level regulatory playing field, and shall contain similar terms
and conditions, including without limitation, provisions of public
benefit with similar cost, taking into account the size and population
of the franchised areas. A grantee is required to indemnify the Borough
and to hold the Borough harmless from all claims against it by third
parties arising out of its compliance with this provision to the extent
that such claims are not barred by Section 635A of the Cable Television
Consumer Protection and Competition Act of 1992 (Limitation of Franchise
Authority Liability), or by any other provision of law.
Whenever the agreement shall set forth any time for an act to
be performed by or on behalf of the grantee or the Borough, such time
shall be deemed of the essence and any failure of the grantee or the
Borough to perform within the time allotted shall be sufficient ground
for the other party to invoke an appropriate penalty including possible
revocation of the franchise, subject to force majeure.
In any controversy or dispute under this chapter, the law of
the Commonwealth of Pennsylvania shall apply.
A. Transfer of franchise. Any franchise granted hereunder shall not
be sold, transferred, leased, assigned or disposed of, including but
not limited to, transfer by force or voluntary sale, merger, consolidation,
receivership or other means, nor shall the control of the grantee
be changed without the prior consent of the Borough. The Borough reserves
the right to impose certain conditions on the transferee as a condition
of transfer approval to ensure that the franchisee is able to meet
ordinance and franchise requirements and existing operating practices.
B. Transfer threshold. The grantee shall promptly notify the Borough
of any actual or proposed change in, or transfer of, or acquisition
by any other party of, control of the grantee. The word "control"
as used herein is not limited to major stockholders, but includes
actual working control in whatever manner exercised. A transfer of
ownership requiring approval shall arise upon the disposal by the
grantee, directly or indirectly, by gift, assignment, voluntary sale,
merger, consolidation or otherwise, of 25% or more at one time of
the ownership or controlling interest in the system, or 30% cumulatively
over the term of the franchise of such interests to a corporation,
partnership, limited partnership, trust or association, or person
or group of persons acting in concert. Except that no consent shall
be required for any sale, transfer, or assignment of ownership or
control to an entity under common control with grantee, provided that
prior to such transfer, grantee provides to the Borough verifiable
information to establish that such transferee under common control
has the financial, legal and technical ability to fully perform all
obligations of the franchise.
C. Borough approval. Every change, transfer, or acquisition of control
of the grantee shall make the franchise subject to cancellation unless
and until the Borough shall have consented thereto, which consent
will not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer, or acquisition
of control, the Borough may inquire into the legal, financial, character,
technical and other public interest qualifications of the prospective
controlling party, and the grantee shall provide the Borough with
all required information relevant to said inquiry. Failure to provide
all information requested by the Borough as part of said inquiry shall
be grounds for denial of the proposed change, transfer or acquisition
of control.
D. Assumption of control. The Borough agrees that 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 18 months,
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 and other public
interest qualifications of the applicant are satisfactory, 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. No waiver of Borough property rights. 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.
F. Transfer time periods. The Borough will not approve any transfer
or assignment of the franchise prior to completion of construction
of the proposed system unless appropriate guarantees which are acceptable
to the Borough are made by the transferee.
G. Disclosure of purchase price. The Borough reserves the right to require
the grantee and transferee to disclose the purchase price of any transfer
or assignment of the cable system.
H. Signatory requirement. 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.
I. Time frame for Borough review. The Borough shall have 120 days to
act upon any request for approval of such sale or transfer that contains
or is accompanied by such information as is required in accordance
with FCC regulations and by the Borough. If the Borough fails to render
a final decision on the request within 120 days, such request shall
be deemed granted unless the requesting party and the Borough agree
to an extension of time.
Upon completion of the term of any franchise granted under this
chapter, the Borough may grant or deny renewal of the franchise of
the grantee in accordance with the provisions of the Cable Act. The
grantee shall own the cable communication system, but shall have no
property right in the public rights-of-way upon the completion of
the franchise term including any renewals and extensions thereof.
A. Police powers. In accepting the franchise, the grantee acknowledges
that its rights hereunder are subject to the police power of the Borough
to adopt and enforce general ordinances necessary to the safety and
welfare of the public; and it agrees to comply with all applicable
general laws and ordinances enacted by the Borough pursuant to such
power.
B. Conflicts. Any conflict between the provisions of this chapter or
the franchise and any other present or future lawful exercise of the
Borough's police powers shall be resolved in favor of the latter,
except that any such exercise that is not of general application in
the jurisdiction or applies exclusively to grantee or cable communications
systems which contains provisions inconsistent with this chapter or
the franchise shall prevail only if, upon such exercise, the Borough
finds an emergency exists constituting a danger to health, safety,
property or general welfare and such exercise is mandated by law.
A. Because the Borough finds that:
(1) The streets of the county, commonwealth, and 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 county, commonwealth, and Borough at great expense to its taxpayers.
(2) The grant to the grantee to 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.
(3) The administration of this chapter and the franchise imposes upon
the Borough additional regulatory responsibility and expense.
(4) A grantee of any franchise hereunder shall pay to the Borough a franchise
fee in an amount as designated in the franchise, but in no event less
than 5% of the gross annual revenues, or the maximum amount permitted
under applicable federal, commonwealth, or local law, if such maximum
is greater than 5%. The annual franchise fee payable shall be in addition
to any other fee and shall commence as of the effective date of the
franchise. Annually, the Borough shall be furnished a statement of
said payment by a certified public accountant, reflecting the total
amounts of annual gross revenues, a breakdown by type of revenue,
and the above charges and computations for the period covered by the
payment.
B. Franchise fee in addition to other tax or payment. The Borough believes
that payment of the franchise fee made by grantee to the Borough shall
not be considered in the nature of a tax, but shall be in addition
to any and all taxes which are now or may be lawfully required hereafter
to be paid by any federal, commonwealth, or local law. This payment
shall be in addition to any other tax or payment owed to the governments
or other taxing jurisdiction by the grantee.
C. Acceptance by the Borough. No acceptance of any payment by the Borough
shall be construed as a release or as an accord and satisfaction of
any claim the Borough 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 grantee.
D. Failure to make required payment. In the event that any franchise
payment or recomputed amount is not made on or before the dates specified
herein, 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.
E. Payments to be made quarterly. The franchise fee and any other cost
or damage assessed against the grantee shall be payable quarterly
to the Borough of New Britain. The grantee shall file a complete and
accurate statement verified by a financial officer of the grantee,
of all gross revenues within the franchise area and the number of
subscribers per service during the period for which said quarterly
payment is made, and said payment shall be made to the Borough no
later than 45 days following the expiration of each calendar quarter
ending March 31, June 30, and September 3h, and no later than the
90 days after the calendar quarter ending December 31.
F. The Borough's right of inspection. 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. Audits shall be at the expense of the Borough unless
the audit reveals an underpayment of more than 5% in the amount of
the franchise fee due to the Borough, in which event the cost 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.
A. Grounds for revocation. The Borough reserves the right to 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 the ordinance
and the franchise grant:
(1) If the grantee shall default in the performance of any of the material
obligations under this chapter, the franchise, 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 the performance
bond as required herein.
(3) If the grantee, after all established regulatory and appellate procedures
have been exhausted, shall violate any 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 or deceit upon the Borough or
cable subscribers.
(5) The grantee's construction schedule is delayed 180 days beyond
the schedule contained in the franchise or beyond any extended date
set by the Borough.
(6) The grantee becomes insolvent, unable or unwilling to pay its debts
or is adjudged bankrupt.
(7) Failure to restore service after 96 consecutive hours of interrupted
service substantially throughout the franchise area, except when approval
of such interruption is obtained from the Borough.
(8) Material misrepresentation of fact in the application for or negotiation
of the franchise or any extension or renewal thereof.
(9) If the grantee ceases to provide a substantial portion of ongoing
cable services for any reason within the control of the grantee over
the cable communications system.
B. Effect of circumstances beyond control of grantee. The grantee shall
not be declared at fault or be subject to any sanction under any provision
of this chapter in any case, in which performance of any such provision
is prevented for reasons beyond the grantee's control. A fault
shall not be deemed to be beyond the grantee's control if committed
by a corporation or other business entity in which the grantee holds
a controlling interest, whether held directly or indirectly.
C. Effect of pending litigation. 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. 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.
D. Procedure prior to revocation.
(1) The Borough shall make written demand that the grantee comply with
any such requirement, limitation, term condition, rule or regulation
or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the grantee continues for a period of 30 days
following such written demand, the Borough shall place its request
for termination of the franchise upon a regular Council meeting agenda.
The Borough shall cause to be served upon such grantee at least seven
days prior to the date of such Council meeting, a written notice of
this intent to request such termination, and the time and place of
the meeting, notice of which shall be published by the Borough Manager
or his designee, at least once, seven days before such meeting in
a newspaper of general circulation within the Borough.
(2) The Council 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 reasonably determined by the Borough, the Council shall
direct the grantee to comply within such time and manner and upon
such terms and conditions as are reasonable.
(4) If the Council shall determine such failure, refusal, or neglect
by the grantee was without just cause, then the Council shall, by
resolution, declare that the franchise of the grantee shall be terminated
unless there is compliance by the grantee within 90 days.
E. Disposition of facilities. In the event a franchise expires and is
not renewed or extended, is revoked or otherwise terminated, the Borough
may, in its sole discretion, do any of the following:
(1) Purchase the system under the procedures set forth in §
151-24 of this chapter.
(2) Effect a transfer of ownership of the system to another party;
(3) Order the removal of all or a portion of the system facilities as
required by the Borough within a reasonable period of time as determined
by the Borough or require the original grantee to maintain and operate
its system for a period of six months or until such further time as
is mutually agreed upon.
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 subsection, this chapter and the franchise.
G. Restoration by Borough; reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§
151-7 and
151-9 and/or Subsection
F above, 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 provided by grantee. The Borough shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
H. Extended operation. Upon either the expiration and nonrenewal or
revocation of a franchise, the Borough may require the grantee to
continue to operate the system for a period of six months from the
date of such expiration or revocation, or until such time as is mutually
agreed upon. The grantee shall continue to operate the cable communications
system under the terms and conditions of this chapter and the franchise
and to provide the regular subscriber service and any and all of the
services that may be provided at the time. 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 or trustees to take
over and conduct the business of the grantee whether in a receivership,
reorganization, bankruptcy or other 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 granted pursuant hereto, and the
receivers or trustees within said 120 days shall have remedied all
defaults under the franchise or have commenced expeditiously and in
good faith to do so in the reasonable opinion of the Council; 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
herein granted.
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:
(1) The Borough shall have approved the transfer of the franchise, in
the manner this chapter provides; and
(2) Such successful bidder shall have covenanted and agreed with the
Borough to assume and be bound by all the terms and conditions of
the franchise.
Equal opportunity employment shall be afforded by all operators
of cable television systems to all qualified persons, and no person
shall be discriminated against in employment because of race, color,
religion, age, national origin, sex, or physical handicap. Grantee
shall comply with all equal opportunity provisions enacted by federal,
commonwealth and local authorities, as well as all such provisions
contained in this chapter and the franchise.
All notices from grantee to the Borough pursuant to this chapter
and the franchise shall be to the Borough Manager or his/her 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 a locally accessible office as specified in this chapter
and the franchise, 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(es) and telephone
numbers and any changes thereof.
The grantee shall not be excused from complying with any of
the terms and conditions of this chapter or the franchise by any failure
of the Borough upon any one or more occasions to insist upon or to
seek compliance with any such terms or conditions.
A. Right to purchase of the system by the Borough upon termination or
expiration of the franchise.
(1) Right to purchase. In the event the grantee forfeits and the Borough
terminates the franchise for cause, pursuant to provisions of this
chapter and the franchise, or the franchise is not renewed at/or following
the normal expiration of the franchise term, the Borough shall have
the right, directly or as an intermediary, to purchase the franchised
cable communications system or effect the ownership of the system
to another person. Any such acquisition or transfer shall be as specified
in the Cable Act. The Borough shall notify the grantee in writing
within 30 days following nonrenewal or termination of its intent to
acquire the system on its behalf or effectuate the ownership of the
system to another person. Purchase price shall be based upon the value
of the system determined pursuant to this section.
(2) Arbitration. In the event the Borough and grantee are unable to agree
upon the value of the cable communications system, either party may
require by written notice to the other that the value of cable communications
system be submitted to arbitration in the following manner:
(a)
The Borough and the grantee shall each within 15 days after
such written notice select an arbitrator who shall be a disinterested
person with reasonable knowledge and experience relative to the subject
to be arbitrated. The two arbitrators thus selected shall immediately
thereafter select a third arbitrator who shall likewise be a disinterested
person having reasonable knowledge and experience relative to the
subject to be arbitrated.
(b)
Within 30 days after appointment of all arbitrators and upon
10 days' written notice to the parties, the panel of arbitrators shall
commence a hearing on the issue of valuation and shall receive all
relevant information from the parties.
(c)
The hearing shall be recorded and may be transcribed at the
request of either party. All hearing proceedings, debate and deliberations
shall be open to the public and at such times and places as contained
in the notice or as thereafter publicly stated, except that if two
arbitrators agree, debate and deliberations may be held in closed
session.
(d)
The value of the system as determined by the arbitration panel shall be determined pursuant to Subsection
A(1) above.
(e)
Within 30 days after the close of the hearing, the panel of
arbitrators shall prepare findings and decision agreed upon by a majority
of the panel which shall be filed with the Borough and served by mail
upon the grantee. The decision of the panel regarding the value of
the system shall be final and binding upon the parties. Should there
be no majority decision, the proceedings shall become null and void
and shall be started anew, unless the parties extend by mutual agreement
the time which the panel of arbitrators has to make a decision.
(f)
Either party may seek judicial relief in the following circumstances:
[1]
A party fails to select an arbitrator;
[2]
The arbitrators fail to select a third arbitrator;
[3]
One or more arbitrators is unqualified;
[4]
Designated time limits have been exceeded;
[5]
The panel has not proceeded expeditiously;
[6]
The decision was procured by corruption, fraud or undue means;
[7]
There was evident partiality on the part of one or more of the
arbitrators;
[8]
The arbitration panel exceeded its authority hereunder;
[9]
Based upon the record, the panel abused its discretion.
(g)
In the event a court of competent jurisdiction determines that
judicial relief is appropriate to the circumstances set forth above,
the court in its discretion may order the arbitration procedure repeated
and issue findings, orders and directions.
(h)
The expenses of the arbitrators and those expenses incurred
by the panel as a whole shall be borne equally by the parties.
(3) Notification. The purchase price shall be the value of the system
as determined by the arbitration panel.
B. Right of inspection of records. Upon reasonable advance notice, the
Borough shall have the right to inspect at any time during normal
business hours, all books, records, reports, maps, plans, financial
statements, and other like materials of the grantee relating to the
operation of the cable communications system and the enforcement of
this chapter and the franchise within the Borough, including, but
not limited to system records where information is not available on
a franchise area basis. Grantee shall provide such information in
such form as may be required by the Borough for said records.
C. Right of inspection of construction. The Borough shall have the right
to inspect all construction or installation work performed subject
to the provisions of the franchise and upon prior notice to the grantee,
to make such tests as it shall find necessary to ensure compliance
with the terms of this chapter and other pertinent provisions of the
law. The grantee shall be afforded the opportunity to be present at
and observe such testing and shall be provided with the results of
any such testing undertaken by the Borough.
D. Right of inspection of property. At all reasonable times, grantee
shall permit examination by any duly authorized representative of
the Borough, of system facilities, together with any appurtenant property
of grantee situated within or without the Borough.
E. Right to require removal of property. Upon denial of renewal of this
chapter or the franchise, or upon its revocation or expiration and
nonrenewal, as provided for herein, the Borough shall have the right
to require the grantee to remove, at its own expense, all portions
of the cable communications system required by public necessity from
all streets and public ways within the Borough within six months of
receipt of a written notice from the Borough.
F. Expense reimbursement to Borough. Unless otherwise provided in the
franchise agreement, the grantee shall pay the Borough a sum of money
which will, when added to application fees received, reimburse all
costs and expenses incurred by it in connection with preparation of
this chapter, the initial franchise agreements, including, but not
limited to, consultant fees, attorneys' fees, publication fees,
travel expenses and all other direct costs; provided, however, that
the Borough shall submit a detailed schedule of all such costs. Such
payment shall be made within 30 days after the Borough furnishes the
grantee with a written statement of such initial franchise expenses.