[HISTORY:[1] Adopted by the Township Council of the Township of College 8-21-2008 by Ord. No.
O-08-08. Amendments noted where applicable.]
A.
Statement of intent and purpose. The grantor intends, by the adoption
of this chapter, to facilitate the development and operation of cable
systems to provide cable service. This development can contribute
significantly to meeting the cable-related needs and desires of many
individuals, associations, and institutions. Therefore, the following
are statements of the grantor's intent when granting or renewing a
franchise:
(1)
Provide for the installation and operation of cable systems with
features meeting the current and future cable-related needs and interests
of the community considering the costs to subscribers and to any operator
of cable systems.
(2)
To act expeditiously on any requests for a franchise so as to allow
the prompt provision of cable service while ensuring that the public
interest is met and that residents are not discriminated against based
on race, ethnicity, income, or other unfair basis.
(3)
Encourage the offering of the widest feasible scope and diversity
of programming and other services to all grantor residents that are
consistent with community needs and interests and as measured against
the cost of providing such programming and other services.
(4)
Encourage implementation of technical advances in cable programming
technology, and to make available to residents cable services of all
kinds in the grantor.
(5)
Provide the use of channel capacity for government, educational,
and public service access programming consistent with the needs and
interests of the community and federal law.
(6)
Ensure that rates and charges for basic service programming, equipment,
and service are fair, reasonable and consistent with federal standards.
(7)
Require that a grantee of a franchise provide customer service consistent
with industry standards, this chapter and the standards of the FCC.
(8)
Ensure that the installation and maintenance of cable systems comply
with all generally applicable grantor ordinances and regulations,
and do not interfere with the grantor's legitimate use of rights-of-way
of its own facilities and property.
(9)
That the occupation of the grantor's rights-of-way does not endanger
the health, safety and welfare of its citizenry, public property or
other uses of the rights-of-way.
(10)
Ensure the widest availability of cable services within the grantor
on a nondiscriminatory basis.
(11)
Provide for compliance with the emergency alert provisions set forth
by the FCC, set forth under 47 CFR Part 11, FCC Rules and Regulations,
Emergency Alert system (EAS). To the extent required by federal and
state law, the grantee of a franchise shall assist the grantor in
working with the Centre County Office of Emergency services and the
Centre Region Emergency Management Council in the establishment of
an emergency response plan.
(12)
Provide for the payment of franchise fees in accordance with federal
law.
B.
Franchise fee and franchising costs. Costs incurred by the grantor
for the granting or renewing of a franchise and for rights-of-way
use shall be reimbursed by the collection of franchise fees.
A.
Short title. This chapter shall be known and cited as the "Township
of College cable system Regulatory ordinance." Within this document
it shall also be referred to as "this chapter" or "the chapter."
B.
Applicability. The requirements of this chapter shall supersede any
existing ordinance(s) of the grantor inconsistent with this chapter
and apply to the full extent of the terms herein and shall be limited
in scope or application only to the extent as may be required by applicable
federal or state law, including such changes in applicable law as
may be hereinafter enacted. No provisions of this chapter shall be
disregarded pursuant to this subsection except on express application
to and determination by the grantor to such effect based on the specific
factual circumstances demonstrated. When not in conflict with a franchise
agreement, each grantee shall be subject to all the terms and conditions
of this chapter. Any franchise existing at the time of adoption of
this chapter shall be subject to it at the time a renewed franchise
is granted by the grantor. Nothing in this chapter or amendments thereto
shall be interpreted to unilaterally deprive any person of any rights
or obligations imposed by any binding and existing valid franchise
agreement during the term thereof, whether entered into before or
after enactment of this chapter, and shall impose obligations on any
such person additional to those included in such franchise agreement
only to the extent permitted by law and to the extent not inconsistent
with such franchise agreement; provided that the failure of the grantor
to enforce any provision herein or in a franchise agreement or the
failure of any person to comply with any provision herein or in a
franchise agreement shall not be a waiver of the grantor's right to
enforce such provisions nor shall it in any way constitute evidence
or agreement by the grantor that such person has a valid existing
franchise agreement. The provisions of this chapter shall apply irrespective
of whether a grantee is determined to be operating pursuant to a valid
franchise agreement.
C.
Participation in CACC authorized. The grantor may negotiate franchise
language jointly with other local grantors in order to develop a coordinated
franchise document with common elements shared among participating
municipalities in the Centre Area cable Consortium ("CACC").
D.
Preservation of police power authority. Any rights granted pursuant
to this chapter and pursuant to any franchise agreement authorized
hereunder are subject to the police power authority of the grantor
to adopt and enforce ordinances necessary to the health, safety, and
welfare of the public. Grantees shall be subject to and comply with
all valid generally applicable laws enacted by the grantor.
E.
Public inspection of records. Certain information required to be
filed with the grantor pursuant to this chapter or a franchise is
subject to inspection and copying by the public pursuant to the provisions
of Pennsylvania Open Records law, 65 P.S. § 271, as amended
("Sunshine law").[1] Notwithstanding anything to the contrary set forth herein,
a grantee shall not be required to disclose information which it reasonably
deems to be proprietary or confidential in nature. The grantor agrees
to treat any information disclosed by a grantee as confidential and
only to disclose it to those employees, representatives, and agents
of the grantor that have a need to know in order to enforce a franchise
and who agree to maintain the confidentiality of all such information.
The grantee shall not be required to provide subscriber information
in violation of Section 631 of the cable Act or any other applicable
law. For purposes of this section, the terms "proprietary" or "confidential"
include, but are not limited to, information relating to a cable system
design, customer lists, marketing plans, financial information unrelated
to the calculation of franchise fees or rates pursuant to FCC rules,
or other information that is reasonably determined by a grantee to
be competitively sensitive. In the event that the grantor receives
a request under the state's Sunshine law, public records or similar
law for the disclosure of information the grantee has designated as
confidential, trade secret or proprietary, the grantor shall promptly
notify the grantee of such request and cooperate with the grantee
in its efforts to protect its rights.
[1]
Editor's Note: Former 65 P.S. § 271 was repealed
10-15-1998 by P.L. 729, No. 93, § 6(a)(3). See now 65 Pa.C.S.A.
§ 701 et seq. for the Sunshine Act.
F.
Enforcement. The grantor shall be entitled to enforce this chapter
and any franchise agreement through all remedies lawfully available.
G.
Relationship of the parties. Under no circumstances shall any franchise
agreement authorized by this chapter be construed to create any relationship
of agency, partnership, joint venture, or employment between the parties.
H.
Indemnification. As a condition of use of the rights-of-way, every
grantee at its sole cost and expense, shall indemnify, protect, defend
and hold harmless the grantor, its elected officials, officers, employees,
and agents acting in their official capacities, from and against any
and all claims, demands, losses, damages, liabilities, fines, charges,
penalties, administrative and judicial proceedings and orders, judgments,
remedial actions of any kind, and all costs and expenses of any kind,
including, without limitation, reasonable attorneys' fees, directly
or indirectly, in whole or in part, resulting from the granting of
a franchise, property damage or bodily injury (including accidental
death) that arise out of the grantee's construction, operation, maintenance
or removal of a cable system, except to the extent arising from or
caused by the sole or gross negligence or willful misconduct of the
grantor, its elected officials, officers, employees, agents or contractors.
The grantor shall give the grantee written notice of its obligation
to indemnify and defend the grantor within 10 business days of receipt
of a claim or action pursuant to this section. If the grantor determines
that it is necessary for it to employ separate counsel, the costs
for such separate counsel shall be the responsibility of the grantor.
For purposes of this chapter, the following terms, phrases,
words, and their derivatives shall have the meanings set forth in
this chapter and any franchise granted by the grantor, unless the
context clearly indicates that another meaning is intended or unless
otherwise more specifically defined in another chapter or code of
the grantor. Words used in the present tense include the future tense,
words in the single number include the plural number, words in the
masculine gender include the feminine, and words in the plural number
include the singular. The words "shall" and "will" are mandatory,
and "may" is permissive. Words not defined shall be given their common
and ordinary meaning.
Filing a written acceptance of a franchise on a form approved
by the grantor's solicitor with the grantor's secretary notifying
the grantee of such acceptance.
Channels as designated in a franchise to be used for public
access, educational access, or government access or any combination
thereof.
Channel positions designated in a franchise agreement for public,
educational, or governmental access ("PEG") use; and
The facilities and equipment for the use of such access channel
positions.
The grantee does not relinquish its ultimate ownership of access
facilities when designated for PEG use.
Each person, directly or indirectly, controlling, controlled
by, or under common control with the grantee; provided that "affiliate"
shall in no event mean any limited partner or shareholder holding
an interest of less than 25% of such grantee, or any creditor of such
grantee solely by virtue of its status as a creditor and which is
not otherwise an affiliate by reason of owning a controlling interest
in, being owned by, or being under common ownership, common management,
or common control with, such grantee.
The cable Act, all applicable FCC rules, this chapter, all
generally applicable ordinances, and state statutes and rules and
regulations, any amendments thereto, and any of the applicable federal
and/or state laws that are now existing or hereafter adopted or amended.
Any person who applies for a franchise pursuant to this chapter.
The process by which an applicant submits a request and indicates
a desire to be granted an initial franchise to utilize the rights-of-way
of all, or a part, of the grantor jurisdictional area. An application
includes all written documentation, statements and representations,
in whatever form or forum, made by an applicant to the grantor concerning
the construction of a system over, under, on or through the rights-of-way;
the area proposed to be served within the grantor by an applicant;
the portion of the rights-of-way proposed to be used by an applicant;
and any other matter pertaining to a proposed system, which is necessary
for a determination as to whether or not the applicant meets the terms
and conditions established by this chapter.
To the extent required by federal law, any service tier that
includes the lawful retransmission of all commercial television broadcast
signals carried in fulfillment of the requirements of Section 614
of the cable Act; qualified local noncommercial educational television
broadcast signals carried in fulfillment of the requirements of Section
615 of the cable Act; and any public, educational, and governmental
access programming if required by a franchise agreement. "Basic service"
as defined herein shall be consistent with the cable Act and federal
law. A franchise agreement may include a more expanded definition
based upon mutual agreement between the grantor and a cable operator.
The cable Communications Policy Act of 1984, P.L. No. 98-549,
(codified at 47 U.S.C. §§ 521 to 611 (1982 and Supp.
V. 1987) as amended by the cable Television Consumer Protection and
Competition Act of 1992, P.L. No. 102-385, and the telecommunications
Act of 1996, P.L. No. 104-104 (1996) as it may, from time to time,
be amended.
Any person or group of persons who provides cable service
over a cable system and directly or through one or more affiliates
owns a significant interest in such cable system or who otherwise
controls or is responsible for, through any arrangement, the management
and operation of such a cable system.
Programming provided by or generally considered comparable
to programming provided by a television broadcast station.
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, as such term is defined in the cable
Act.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed or used to provide cable services and which is capable
of being provided to multiple subscribers within the grantor, but
such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations.
A facility that serves subscribers without using any rights-of-way.
A facility of a common carrier which is subject, in whole or
in part, to the provisions of 47 U.S.C. §§ 201 to 226,
except that such facility shall be considered a cable system [other
than for purposes of 47 U.S.C. § 541(c)] to the extent such
facility is used in the transmission of cable services directly to
subscribers.
Any facility of any electric utility used solely for operating
its electric utility system.
Costs associated with the purchase of video production assets,
products or other resources that will provide service and support
for access channels for more than one year, but shall not have any
meaning inconsistent with generally accepted accounting principles.
The combined eight communities, including Benner, College,
Ferguson, Halfmoon, Harris and Patton Townships and the Boroughs of
Bellefonte and state College.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel (as "television channel" is defined by the FCC by regulation).
An electronic device that converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber and, through the use of an appropriate channel selector,
permits a cable subscriber to view all authorized cable subscriber
signals delivered at designated converter dial locations.
Costs in the following categories:
State and local taxes and franchise fees applicable to the provision
of cable service;
Incidental costs of complying with franchise requirements, including
bond premiums and other security payments, insurance and indemnification
costs, penalties and liquidated damages, and the capital costs of
providing public, educational, and government access channels as required
by the local franchising authority;
Retransmission consent fees or copyright fees incurred for the
carriage broadcast signals;
FCC regulatory fees pursuant to 47 U.S.C. § 159; headend
equipment costs necessary for the carriage of digital broadcast signals;
and
Other programming costs.
Notwithstanding, in accordance with the FCC regulations, certain
other charges are not incidental and they are to be considered part
of the franchise fee assessment subject to the five-percent cap: attorney
fees, consultant fees, application or processing fees that exceed
the reasonable cost of processing such submissions, and complimentary
or discounted services provided to grantors.
The cable or cables or other hardwire technologies that connect
the cable system to the subscriber's dwelling or residence to the
nearest feasible point on the system in order to receive cable service.
The availability of channel positions on the cable system
for noncommercial educational or government use by agencies, institutions,
organizations, groups and individuals in the community, including
the grantor or their designees for the distribution of noncommercial
programming not under the grantee's editorial control and consistent
with applicable law, including:
EDUCATIONAL ACCESSAccess where local schools or education institutions, public or private, K-12, technical and community colleges, as well as other accredited institutions of higher learning, are the designated programmers having editorial control over their programming which shall concern their educational functions;
GOVERNMENT ACCESSAccess where the grantor, county, or other governmental entities, agencies or institutions, or their designees, as designated by the grantor are the primary or designated programmer having editorial control over its programming which shall concern governmental meetings, activities, services, or community affairs; and
EG ACCESS or EG ACCESS CHANNELEducational access and government access channels, collectively.
The federal Communications Commission of the United states
government.
The initial authorization or renewal of the rights and obligations
extended by the grantor to a person to own, lease, construct, maintain,
or operate a cable system in the rights-of-way within the grantor
for the purpose of providing cable services. It shall not mean or
include any other permit or authorization required for the privilege
of transacting and carrying on a business within the grantor required
by the ordinances and laws of the grantor, including the provision
of telecommunications services; any generally applicable permit, agreement,
or authorization required in connection with construction and operations
in the rights-of-way, including, without limitation, permits and agreements
for placing devices on poles, conduits, or other structures, whether
owned by the grantor or a private entity, or for excavating or performing
other such work in or along the rights-of-way. Cable operators shall
be responsible for obtaining all generally applicable permits, licenses,
or other forms of approval or authorization necessary prior to the
commencement of any such construction activity. Notwithstanding, standard
service installations, routine maintenance, or repair or replacement
of parts on any part of the cable system or its appurtenances (e.g.,
system passive devices, amplifiers, power supplies, pedestals, or
other related equipment) shall not require an operator to obtain prior
approval, authorization, permits, or licenses to perform such activities
from the grantor.
Any tax, fee, or assessment of any kind imposed by the grantor
on a cable operator or its subscribers, or both, solely because of
their status and activities as such in accordance with Section 622(g)
of the cable Act. The term "franchise fee" does not include:
Any tax, fee, or assessment of general applicability (including
any such tax, fee, or assessment imposed on both utilities and cable
operators or their cable services but not including a tax, fee, or
assessment that is unduly discriminatory against cable operators or
subscribers);
Capital costs that are required by a franchise to be incurred
by a grantee for public, educational or governmental ("PEG") access
facilities;
Requirements or charges incidental to the award or enforcement
of a franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages;
Any permit fee or other such fee imposed under any valid ordinance;
Any fee imposed under Title 17 of the United States Code; or
Grantor utility pole fees.
A person, including a cable operator, who has been granted
a franchise to provide cable service by the grantor or is required
to have a franchise and that person or cable operator's agents, employees,
lawful successors, transferees, or assignees.
The Township of College, Centre County, Pennsylvania.
Any revenue actually received by a grantee, or by any other
entity that is a cable service on a grantee's cable system, including
the grantee's affiliates, from the operation of the grantee's cable
system to provide cable services in accordance with general accounting
principals ("GAAP"). By way of illustration and not limitation, this
definition would include, without limitation, revenue derived from
basic service and other tiers of service, franchise fees paid by subscribers,
pay-per-view cable fees, installation and reconnection fees, leased
access channel fees; converter rentals; locally derived revenue from
home shopping to the extent conducted through a cable service; all
lease access payments from the cable system; locally derived advertising
revenues; revenues from two-way transmissions to the extent these
transmissions are considered cable services under federal law; payments
or other consideration received by the grantee for the use of the
cable system to provide cable service or other cable service and accounted
for as revenue under GAAP. Gross revenues shall include revenue received
by any entity other than the grantee where necessary to prevent evasion
or avoidance of the obligations under this code or a franchise to
pay the applicable franchise fees. Revenues which are not directly
attributable to specific subscribers, including, but not limited to,
leased access fees, advertising revenues, and home shopping commissions,
shall be allocated among the franchising jurisdictions served by the
grantee's cable system on a per-subscriber or other equitable basis
measured in a consistent manner from period to period. Gross revenues
shall not include to the extent consistent with GAAP, bad debt; provided,
however, that all or part of any such bad debt that is written off
but subsequently collected shall be included in gross revenues in
the period collected; amounts collected from subscribers for public,
educational and governmental access; provided, however, this exclusion
does not limit a grantee's ability to pass through franchise-related
costs to the extent allowed by valid applicable law; any taxes on
cable services furnished by the grantee which are imposed directly
upon any subscriber or user by the state, grantor or other governmental
unit and which are collected by the grantee on behalf of said governmental
unit.
A communication network which is constructed or operated
by the grantee and which is generally available only for educational
or governmental use. The I-Net shall consist of capacity, fibers or
both, from both within the primary cable network and/or separately
constructed networks that may be dedicated to governmental, educational
and other publicly funded users for two-way, broadband communications.
The I-Net includes all equipment and maintenance of equipment required
to make the capacity available, including, but not limited to, fiber
and coaxial cable, cable modems, switching, routing, transmitting
and receiving necessary for the use of the network as set out in the
individual franchise.
The provision of capacity in a cable system made available
by a cable operator to governmental and educational buildings as determined
by the grantor, pursuant to the specific terms of the applicable franchise,
for noncommercial applications, including, but not limited to, two-way
dedicated voice, video, data and telephony channels connecting and
interconnecting user facilities.
Those hours during which most similar businesses in the community
are open to serve customers, e.g., Monday through Friday, 9:00 a.m.
to 5:00 p.m. In all cases, normal business hours must include some
evening hours, at least one night per week, and/or some weekend hours.
Those conditions that are within the control of the grantee.
Those conditions that are not within the control of the grantee include,
but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, vandalism, public works projects
for which no advanced notice is given, and severe or unusual weather
conditions.
Any video programming services provided to any person by
a grantee certified by the FCC to operate an open video system pursuant
to Section 653 of the cable Act, as may be amended, regardless of
the facilities used.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
The availability of channel positions on the system for noncommercial
public use by the grantor for the distribution of noncommercial programming
not under the grantee's editorial control and consistent with applicable
law. Further, public access shall mean access where organizations,
groups, or individual members of the general public are the designated
programmers having editorial control over their programming pursuant
to rules which may be promulgated by the grantor.
Any building or part thereof owned or leased or for the greater
part occupied by the grantor or other governmental unit for government
administrative purposes, but shall not include buildings owned by
the grantor and leased to third parties or buildings such as storage
facilities at which government employees are not regularly stationed.
The reauthorization of a franchise granted to an existing
cable operator as provided under applicable law and this chapter.
Any and all non-trade-secret documents and information required to be completed and/or kept or filed by a grantee on order of the federal Communications Commission, state, or franchise. In accordance with valid applicable law and § 86-2D hereinabove, the grantor shall maintain such information as confidential to the extent that the cable operator identifies specific information as such.
The surface of and the space above and below any public street,
public road, public highway, public freeway, public lane, public path,
public way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or rights-of-way
now or hereafter held by the grantor which shall, within its proper
use and meaning, entitle the grantee to the use thereof for the purpose
of installing or transmitting over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and pertinent to
a cable system.
The loss of picture or sound on one or more channels on a
cable system.
Any cable service installation that can be completed using
a drop of 125 feet or less.
Any person, who or which lawfully elects to subscribe for
any purpose to cable service provided by a grantee by means of, or
in connection with, the cable system, and whose premises or facilities
are physically wired lawfully activated to receive cable service from
the grantee's cable system, including persons who receive cable service
without charge according to the terms of the franchise.
The transmission of electromagnetic signals between or among
points specified by the user, of information of the user's choosing
without change in the form or content of the information as sent and
received regardless of the technology used. This term does not include
cable service.
The telecommunications Act of 1996 codified at Title 47 of
the United States Code.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public. This term does not include cable service,
which is instead subject to separate cable service franchising requirements
under this chapter.
Employees of a grantee who have the authority and capability
while speaking with a subscriber to, among other things, answer billing
questions, adjust bills, and schedule service and installation calls.
A.
Franchise required. It shall be unlawful for any person to construct,
operate or maintain a cable system or other competing cable services,
including OVS, in the grantor without a franchise in the form of a
franchise agreement authorizing the same, unless valid applicable
federal or state law prohibits the grantor's enforcement of such a
requirement. Such franchise agreement shall comply with all of the
specifications of this chapter unless otherwise specified by the grantor.
B.
Franchise not exclusive.
(1)
Any franchise granted by the grantor shall be nonexclusive. The grantor
specifically reserves the right to grant, at any time, such additional
franchises for a cable system or any component thereof, to any other
person, including itself, as it deems appropriate, subject to this
chapter and valid applicable state and federal law.
(2)
The terms and conditions of any franchise granted or renewed after
the effective date of this chapter shall be, when taken as a whole,
no less burdensome or more beneficial than any other franchise granted
or renewed subject to this chapter when taking into consideration,
where reasonably warranted, the situation that existed at the time
in which the earlier terms were adopted; provided, however, that nothing
herein shall be construed as requiring the use of identical terms
or conditions, or limit the enforceability of conditions that are
freely negotiated.
C.
Authority for use of rights-of-way. For the purpose of constructing,
operating, and maintaining a cable system in the grantor, the grantee
may erect, install, construct, repair, replace, relocate, reconstruct
and retain in, on, over, under, upon, across and along the rights-of-way
accessible for construction of a cable system within the grantor such
lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment
as are necessary and appurtenant to the operation of the cable system,
subject to the requirements of this chapter and all other applicable
grantor codes. Nothing in this chapter shall be construed to require
the grantee to construct, operate, or maintain underground any ground-mounted
appurtenances such as customer taps, line extenders, system passive
devices, amplifiers, power supplies, pedestals, or other related equipment.
D.
Franchise term. A franchise shall commence upon acceptance by the grantee as defined in § 86-15 herein and as may continue for up to 15 years from the date of acceptance, unless renewed, revoked or terminated sooner as herein provided.
E.
Area of cable service. Every franchise shall apply to the area designated
by the franchise agreement approved by the grantor.
F.
Application for grant of initial franchise. In conformance with the
cable Act and FCC rules, an application for an initial franchise for
a cable system to provide cable service shall at a minimum be subject
to additional information needed by the grantor, to understand the
application, including the following:
(1)
The applicant's name.
(2)
The names of the applicant's officers and directors.
(3)
The business address of the applicant.
(4)
The name and contact information of a designated contact for the
applicant.
(5)
A description of a geographic area of the grantor that the applicant
proposes to serve.
(6)
The public access or EG access channel capacity and capital support
proposed by the applicant.
(7)
The term of the agreement proposed by the applicant.
(8)
Whether the applicant holds an existing authorization to access the
public rights-of-way in the grantor franchise.
(9)
The amount of franchise fee the applicant offers to pay.
(10)
Information necessary for the grantor to evaluate a grantee's legal,
technical, and financial qualifications to construct, own, and operate
a cable system.
(11)
Any additional information required by applicable state laws or grantor
ordinances.
G.
Consideration of initial franchise application. Applicants may be evaluated according to the information included in an application as required by § 86-4F, and within a maximum time, after 90 days for persons with existing authority to access rights-of-way and 180 days for persons that do not have authority to access rights-of-way. The times start on the date an applicant files an application or other writing including certain minimum information which is set forth in § 86-4F, of this chapter and deemed complete by the grantor. The grantor and an applicant may agree, in writing; to extend the ninety/one-hundred-eighty-day time period for negotiations. It may then be adopted at the date as permitted by this § 86-4G. If the ninety/one-hundred-eighty-day time elapses without action by the grantor, the applicant is automatically granted an interim franchise based on the application submitted. Thereafter, the grantor and applicant may continue to negotiate the terms of a franchise in an attempt to reach a negotiated franchise. The ninety/one-hundred-eighty-day time may be tolled by the grantor if it has requested and not received information from the applicant.
H.
Grant of additional franchise and competing service. Since competing
or overlapping franchises may encourage the introduction of better
cable services and quality at lower prices, the grantor will at all
times attempt to accommodate additional entrants. At the same time
it is recognized that the introduction of overlapping cable systems
could have a potential adverse impact on the rights-of-way, and on
the quality and availability of existing cable services to the public.
Accordingly, the grantor shall issue a franchise in an area where
another grantee is operating only following a public hearing to consider
the potential impact which the grant of an additional franchise may
have on the community and the rights-of-way. In considering whether
to grant one or more additional franchises, the grantor shall specifically
consider, and address in a written report, the following issues:
(2)
The legal, technical, and financial qualifications of the applicant
and agreement by a grantee to comply with such requirements of the
grantor as may be determined by it to be applicable to a grantee in
conformance with applicable law.
(3)
Acceptance of a franchise and the terms therein.
(4)
The capacity of the rights-of-way to accommodate one or more additional
cable systems and the potential disruption of rights-of-way and private
property that may occur if one or more additional franchises are granted.
(5)
Such other information as the grantor may deem appropriate to be
considered prior to granting any competing or overlapping franchise.
I.
Application for franchise renewal. Renewals will be according to
valid applicable law, as amended. A grantor and a grantee, by mutual
consent, may enter into renewal negotiations at any time during the
franchise term of a franchise agreement. According to applicable law,
the grantor will review and evaluate the past performance of a grantee,
including compliance with an existing franchise; also, review and
determination by the grantor of current and future community needs
and the technical, financial, and legal capabilities of a grantee
to meet the current and future cable-service-related needs in a new
franchise considering the reasonable cost to do so.
J.
Permits for nonfranchised entities. The grantor may issue a license,
easement, or other permit to a person other than the grantee to permit
that person to traverse any portion of the rights-of-way for purposes
other than providing cable service. Such license or easement, absent
a grant of a franchise in accordance with this chapter, shall not
authorize nor permit said person to provide cable service of any type
to any home or place of business within the grantor nor render any
other service within the grantor except as specifically authorized
by the grantee.
K.
Franchise provisions.
(1)
All franchises granted pursuant to this chapter are subject to this
chapter, including at least the following provisions:
(a)
The continuing authority of the grantor to impose such other
regulations of general applicability through lawful exercises of the
grantor's police powers as may be determined by the grantor to be
conducive to the health, safety, and welfare of the public.
(b)
The continuing authority of the grantor to control and regulate
the use of rights-of-way.
(c)
The authority of the grantor or its designees upon reasonable
notice to inspect all construction or installation work performed
by a grantee in the grantor subject to the provisions of the franchise
and this chapter, and to make such inspections as it will find necessary
during regular business hours to insure compliance with the terms
of the franchise, this chapter, and applicable law.
(d)
The authority of the grantor or its designees to inspect the
financial records related to franchise fees, maps, plans, and other
like materials of the grantee upon reasonable notice to insure compliance
with the terms of the franchise, this chapter, and applicable law.
(e)
The authority of a grantor, upon the revocation or denial of
renewal as provided therein, to require a grantee to remove at the
grantee's own expense any and all portions of a cable system from
the rights-of-way within the grantor; provided, however, the grantee
shall not be required to remove its cable system, or to relocate the
system, or to sell the system, or any portion thereof as a result
of revocation, denial of renewal, or any other action to forbid or
disallow the grantee from providing cable services if the system is
actively being used to provide noncable services or other services
not regulated under the cable Act.
(f)
The authority of a grantor to require a franchise fee.
(2)
Federal, state, and grantor jurisdiction.
(a)
This chapter and any franchise agreement will be construed in
a manner consistent with all applicable law.
(b)
In the event that the state or federal government discontinue
preemption in any area of cable service over which it currently exercises
jurisdiction in such a manner as to expand rather than limit municipal
regulatory authority, the grantor and a grantee shall in good faith
negotiate applicable change to modify a franchise agreement to comply
with the changed law to ensure competitive equity between a grantee
and other cable operators, taking into account the conditions under
which other cable operators are permitted to provide cable services
to subscribers in the grantor.
(c)
This chapter will apply to all franchises granted or renewed
from and after the effective date of this chapter.
(d)
The grantee will not be relieved of the grantee's obligation
to comply with any of the provisions of this chapter or any franchise
agreement granted pursuant to this chapter by reason of any failure
of the grantor to enforce prompt compliance.
(e)
In the event of a change in applicable law affecting this chapter,
the grantor may amend this chapter to comply with such change in applicable
law.
(3)
Franchise agreement.
(a)
By acceptance of a franchise, a grantee acknowledges and agrees,
unless otherwise provided in the franchise, that this chapter in whole
and its exhibits are incorporated and made part of a franchise agreement
and shall be a binding contract. In addition, the franchise agreement
accepted by a grantee is deemed to include the following representations:
[1]
The grantee accepts and agrees to all of the provisions of this
chapter, as to construction, operation, or maintenance of the cable
system, which the grantor may include in the franchise agreement subject
to applicable law.
[2]
The grantee has examined all of the provisions of this chapter
and agrees that the provisions thereof are valid and binding and enforceable
as of the effective date of the franchise agreement.
[3]
The grantee recognizes the right of the grantor to adopt such
additional regulations of general applicability as it will find necessary
in the exercise of the grantor's police power. Any amendment to the
grantor code binding on the grantee shall be confined to changes which
do not materially alter the rights and obligations of the grantee
granted under a franchise agreement.
(b)
The franchise agreement will contain such further conditions
or provisions as may be included in the proposal of a grantee and
negotiated between the grantor and a grantee. In case of such conflict
or ambiguity between any terms or provisions of a franchise agreement
and this chapter, the franchise agreement will control.
A.
Cable system design. Every grantee shall offer cable service that
meets the cable-related needs of the grantor in accordance with applicable
law. The franchise shall include a description of the grantee's cable
system, including the general design and capabilities of the cable
system, to identify how the cable system will meet the current and
future cable needs of the grantor and the schedule for commencement
and completion of construction. Every grantee shall have responsibility
for the design and maintenance of a cable system, including subscriber
premises equipment, unless the equipment is owned by the subscriber.
Every grantee will provide notices regarding the use and operation
of any equipment to be operated by subscribers in accordance with
federal law.
B.
System description and maps. A grantee shall provide the grantor,
upon written request, a complete set of cable system location maps
of the service area, on which will be shown those areas within the
grantor which its cable system exists and the description and location
of all rights-of-way within which the cable system has been constructed.
These maps shall be provided to the grantor in hard copy and, if available,
electronic format. Updated maps shall be delivered to the grantor
within 30 days after a request is made.
C.
Biannual technology review. It is recognized that technology is rapidly
changing and that subsequent to its initial construction, further
modifications to incorporate increased channel capacity with compression
technology, fiber optics and other unidentified technologies which
materially affect the capability of the system to offer new and additional
services such as interactive television, video on demand and similar
services, will be desirable. No more than once every two years, the
grantor or its representatives, with the cooperation and assistance
of a grantee, may conduct a full compliance review, including possible
public hearing, with respect to whether the grantee has complied with
the material terms of the franchise agreement, so long as it provides
the grantee with 90 days written notice in advance of the commencement
of any such review or public hearing.
D.
Grantor, installation and general line extension policy.
(1)
A grantee providing initial cable service within a grantor shall
serve all residential areas as described in the franchise agreement
and shall extend cable system and cable service to contiguous areas
upon request of the grantor when a density of 30 homes per cable mile
is reached. In a renewed franchise, the franchise agreement will provide
a description of the grantee's current service area. The grantee will
extend cable service to contiguous areas which have 30 homes per cable
mile. Nothing herein shall be construed to prevent a grantee from
serving areas not covered under this section upon agreement with developers,
property owners, commercial and business establishments or residents.
(2)
Subscribers who request installation or maintenance or repairs shall be given an appointment window for installations, service calls, and other installation activities at a specific time or, at a maximum, a four-hour time block during normal business hours. (The grantee may schedule service calls and other installation activities outside of normal business hours for the convenience of the customer. Persons requesting installation of residential cable service shall be afforded a right of rescission between the time cable service is requested and the time service is actually installed. All standard installations, reconnects, service upgrades or downgrades shall be performed within seven working days of the date the order was placed by the subscriber unless a line extension is required, in which event cable service shall be extended in accordance with § 86-5D(4) of this chapter. Standard installations are those that are located up to 125 feet from the existing distribution system or the distribution system to be built in compliance with this § 86-5D.
(3)
Only those homes which require drops in excess of 125 feet shall
be required to pay for the grantee's materials and labor costs, at
the rate per foot. All other installations shall be performed at no
more than the advertised normal installation rate.
(4)
Grantee shall extend cable service to any residence(s) upon the written
request of one or more residents who shall reside within the requested
extension area and who shall agree to subscribe to the grantee's cable
service where the number of occupied homes, and homes for which certificates
of occupancy have been issued, which would be served by the requested
extension equals seven homes per 1/4 cable mile or more with the measurement
starting from the closest existing usable point of connection to the
system. Unless additional time has been agreed to by the grantor,
such extensions shall be completed within 90 days of submittal of
a request (weather permitting) where the above density standard is
met and all additional utility permits or other right-of-way permits
have been obtained. The grantor and grantee may agree to a different
time for extension in particular instances.
(5)
If the number of homes per 1/4 cable mile is less than seven, the
requesting subscriber(s) may obtain service by paying a share of the
incremental cost of the extension as follows:
(a)
The grantee shall pay a share of costs calculated as the fraction
derived from the existing density as calculated above divided by seven
homes per 1/4 mile; requesting subscriber(s) share shall equal the
remainder. For example, if the existing density is three homes per
1/4 mile, the grantee shall pay 40% of the extension cost and the
requesting subscriber(s) shall pay the remaining 60%.
(b)
When the grantee receives a request for an extension, the grantee
shall, within 30 days, respond in writing with its calculation of
the density and such other terms as may be needed to fully inform
subscriber(s), including cost sharing and reimbursement procedures.
If the density is less than seven homes per 1/4 mile, the grantee
shall also provide a firm price good for 90 days reflecting the proportional
share which the requesting subscriber(s) must pay on a cost-sharing
basis to obtain cable service. Within 90 days from payment of the
cost share by prospective subscriber(s) and receipt of all necessary
utility permits or other right-of-way permits, the grantee shall complete
the extension of service. A franchise may include a description of
the cost-sharing policy in place if different than what is described
in this section.
E.
Interconnection. In accordance with applicable law, including FCC
rules, and the purposes of allowing for public access and EG access
programming telecasts on cable systems serving subscribers in the
grantor and adjoining communities, a grantee will not interfere with
additional connections by other cable operators at studio or transmission
source for public access and/or EG access programming telecasts in
the grantor. Such connections shall be made by direct return line
connection or other appropriate methods independent of a grantee's
cable system.
F.
Provision of service.
(1)
After cable service has been established by activating trunk and
distribution cable for any area, the grantee shall make a standard
installation to any requesting subscriber within that area seven days
from the date of request.
(2)
A grantee, upon written request of the grantor, shall install and
provide basic service as described in a franchise agreement (excluding
pay-per-view television and nonvideo services) to all public buildings
designated by the grantor in a franchise at no charge for either the
initial normal installation or for monthly service provided at each
location. Each of these installations should include one signal drop,
one outlet, and one converter (or such other terminal equipment as
may be necessary to provide an electronic interface with a television
receiver). The public buildings to be provided this complimentary
service shall include public buildings currently connected to and
receiving complimentary basic service; public buildings as described
in a franchise; or any such newly constructed public buildings.
(3)
If more than one outlet is required at any public building as described
in a franchise, the grantee shall install such other outlets at the
cost charged to other institutional facilities for installation and
ongoing service. The distribution of the cable system inside such
buildings shall be the responsibility of the user.
(4)
If required by the grantor under the franchise, the grantee will
make available, without charge, one free cable modem service outlet
to all school buildings and public libraries. The specific locations
shall be identified in the franchise agreement. For the purposes of
this section, the term "school" means an educational institution 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
and does not mean home schools.
G.
Technical standards. A cable system of a grantee shall be designed,
constructed and operated so as to meet those technical standards promulgated
by the federal Communications Commission relating to cable systems
contained in Part 76 of the federal Communications Commission's rules
and regulations relating to cable systems and found in 47 CFR 76.601
to 76.617, as amended, or as may, from time to time, be amended. The
results of tests required by the federal Communications Commission
must be filed with the grantor within 10 business days of written
request.
H.
Special testing.
(1)
At any time after commencement of service to subscribers upon 30
days' written notice, and in the presence of a representative of the
grantee, the grantor may require or may retain an independent engineer
to perform additional tests, full or partial repeat tests, or tests
involving a specific subscriber's drop. Such additional tests will
be made on the basis of complaints received or other evidence indicating
an unresolved controversy or significant noncompliance, and such tests
will be limited to the particular matter in controversy.
(2)
The grantor shall endeavor to so arrange its requests for such special
tests during regular business hours so as to minimize hardship or
inconvenience to the grantee or to the subscriber. The rights and
obligations of the grantor and grantee under this section shall at
all times be subject to applicable law and FCC regulation.
A.
Construction. The grantee shall comply with all generally applicable
codes and ordinances with respect to construction within rights-of-way,
and shall obtain all necessary permits and licenses required by federal,
state and local law, ordinances and rules as required of other like
users of the rights-of-way, before commencing construction in grantor
rights-of-way. A grantee shall furnish to the grantor a written description
of its system, including the size, appearance, and location of aboveground
facilities, boxes, pedestals, and equipment being installed under
their permit. The grantor may review the submittal for compliance
with the grantor ordinances and include this as an exhibit in a franchise.
This requirement shall not be interpreted or construed in any way
to require a grantee to obtain from the grantor prior approval, authorization,
permits, or licenses to repair aboveground appurtenances, pedestals,
and similar equipment or replace with facilities of the same or comparable
size, or to perform maintenance or repairs on any part of the system
where the right-of-way is not being disturbed.
B.
Compliance with laws. As a minimum, and without limitation, the grantee
shall adhere to the grantor's generally applicable ordinances relating
to rights-of-way construction and use safety standards and all building
and zoning codes currently or hereafter in force in the grantor. The
construction, installation, and maintenance of the cable system shall
be effectuated by the grantee in a manner that is consistent with
the laws, ordinances and construction standards of the Commonwealth
of Pennsylvania, all applicable industry standards, the Occupational
Safety and Health Administration, FCC, and the Standards of Good Engineering
Practices for Measurement of cable systems of the National cable Television
Association to the extent applicable, as well as all other valid generally
applicable laws, rules, regulations and ordinances, federal, state
and local, as the same may be modified or amended from time to time,
pursuant to the grantor's legitimate exercise of its police powers.
C.
Minimum interference. A grantee shall construct and maintain its
cable system so as to minimize any adverse impact on public improvements
or facilities of others in a right-of-way and which will not unnecessarily
interfere with the usual and customary uses in the rights-of-way.
D.
Erection of poles prohibited without approval.
(1)
A grantee shall not erect, for any reason, any pole on or along any
rights-of-way or in an existing aerial utility system without the
prior approval of the grantor or owner of the facilities proposed
to be attached to. A grantee shall negotiate with the grantor or,
as applicable, any private utility and furnish grantor with a copy
of a current pole attachment agreement or agreement for conduit use,
or both, before commencement of construction.
(2)
Aboveground location of a cable system and related facilities shall
generally be located where reasonable and safe and in a manner that
will not adversely affect the grantor or other public or private property.
E.
Reservations of rights-of-way. Nothing herein or in a franchise shall
be construed to prevent the grantor from constructing sewers, grading,
paving, repairing or altering any rights-of-way, or laying down, repairing
or removing water mains or constructing or establishing any other
public work. All such work shall be done, insofar as practicable,
in such manner as not to obstruct, injure or prevent the free use
and operation of poles, wires, conduits, conductors, pipes or appurtenances
of the grantee. If any such facilities of the grantee shall interfere
with the construction or repair of any rights-of-way or public improvement,
then upon 30 days' written notice all such property of the grantee
shall be removed or replaced in such manner as shall be directed by
the grantor so that the same shall not interfere with the public works
of the grantor. Such removal or replacement shall be at the expense
of the grantee. The grantee shall at all times have the right to abandon
its property. However, any such abandonment shall be in accordance
with pole attachment agreements, a franchise, and valid applicable
state, federal and local law.
F.
Underground installation. In those areas within the grantor where
cable system facilities and other utilities are currently placed underground,
all cable system facilities shall remain or be placed underground.
In areas where telephone and electric utility facilities are above
ground at the time of a grantee's installation, the grantee may install
its cable system facilities above ground, provided that at such time
as both electric and telephone utility facilities are placed underground,
the grantee shall likewise place its cable system facilities underground
without cost to the grantor. Nothing contained in this section shall
require the grantee to construct, operate and maintain underground
any ground-mounted appurtenances.
G.
New subdivision.
(1)
A grantee shall offer cable services to residential development constructed
or erected after the date of this chapter; provided the dwelling units
meet the density requirement, specified herein. The developer or subdivider
developing any residential development within the grantor shall give
advance written notice to the grantee of the beginning of excavation
for or construction of off-site improvements in any residential development
to enable installation of such conduit, pedestals, substructures and
other equipment as may be necessary to provide cable service to the
residential units in such a development so as to provide minimal interference
with surface improvements. The same density requirements shall apply
as defined in this chapter. If the developer gives the grantee adequate
notice (as defined below), then the grantee shall be obligated to
install all cable lines underground at the time the subdivision is
constructed rather than when the individual lots are actually occupied.
(2)
In cases of new construction or property development where utilities
are to be placed underground, the developer or property owner shall
give the grantee at least 10 days' written notice of such construction
or development, and of the particular date on which open trenching
will be available for the grantee's installation of conduit and/or
cable. The grantee shall provide specifications as needed for trenching.
(3)
Cost of trenching and easements required to bring cable service to
the development shall be borne by the developer or property owner;
provided, however, if the grantee fails to install its conduit and/or
cable within 10 working days of the date the trenches are available,
as designed in the notice given by the developer or property owner,
and the trenches are closed after the five-day period, the cost of
new trenching shall be borne by the grantee.
H.
Property damage and repair.
(1)
The grantee shall endeavor to minimize the occurrence of damage to
improvements in the rights-of-way and all public and private property.
If damage occurs, the grantee shall promptly notify the property owner
within seven days, in writing. Whenever the grantee disturbs or damages
any rights-of-way, other public property or any private property,
the grantee shall promptly restore the property to a condition reasonably
comparable to that existing immediately prior to the disturbance.
In addition, if the grantee is restoring rights-of-way, it shall do
so in accordance with all applicable requirements. If restoration
is not satisfactorily performed by the grantee within a reasonable
time, the grantor may, after prior written notice to the grantee,
or without notice where the disturbance or damage may create a risk
to public health or safety, cause the repairs to be made and recover
the costs of those repairs from the grantee. Within 30 days of receipt
of an itemized proof of payment of those costs, including the cost
of labor, materials and equipment, the grantee shall pay the grantor.
(2)
Upon completion of work which caused any disturbance or damage to
private property, the grantee shall promptly commence restoration
and will use its best efforts to commence the restoration within 72
hours of written notice from the grantor, weather permitting and considering
the nature of the work that must be performed. The grantee shall also
perform such restoration in accordance with any customer service standards
required by a franchise.
(3)
When the grantee excavates the surface of any rights-of-way, the
grantee shall be responsible for restoration of such excavation in
accordance with all grantor general ordinances, rules, regulations
and standards. Throughout the term of its franchise, the grantee's
cable system and related facilities, including aboveground pedestals,
vaults, boxes, generators, power supplies or structures of any kind,
shall be maintained in proper order and repair.
(4)
Upon completion of restoration in any area, the grantee will notify
the grantor.
(5)
If the grantee enters private property for the purposes of construction
where there is no dedicated public easement, the grantee shall first
secure the private property owner's consent.
I.
Permit requirements.
(1)
Subject to the generally applicable ordinances of the grantor, a
franchise and this chapter establishes the general rules and scope
of authority for the grantee to construct and maintain and operate
its cable system within the rights-of-way of the grantor. The grantee
shall designate a responsible contact person, including a telephone
number available seven days a week, 24 hours a day, with whom representatives
of the grantor can communicate with on all matters relating to cable
system installation, construction, operation, and maintenance.
(2)
Prior to any excavation within the rights-of-way, a grantee shall obtain a permit, pay all applicable fees, and perform such work in accordance with applicable provisions of a franchise, and/or other applicable ordinances or regulations with respect to excavation work. Notwithstanding the above, no permit shall be required for cable service drops for individual subscribers, servicing of pedestals, or other routine maintenance of the cable system that does not result in surface disturbance of the public right-of-way as outlined in § 86-6A.
(3)
A grantee must be current with all requirements of this chapter and
all franchise requirements, including payment of required fees and
charges and insurance, before a permit is issued by the grantor.
J.
Cable system drawings. The grantee shall keep and maintain accurate
records and as-built drawings of its cable system constructed, reconstructed,
or relocated within the grantor's rights-of-way in accordance with
Section 5.02 of this chapter. The grantee shall cooperate promptly
and fully with the grantor and take all reasonable measures necessary
to provide accurate and complete information regarding the nature
and location of its cable system located within the rights-of-way
when requested by the grantor to facilitate public improvements. Such
location maps and information shall be at the sole expense of the
grantee without expense to a grantor, its employees, agents, or authorized
contractors.
K.
Grantee responsible for costs. All earth, materials, sidewalks, pavings,
crossings, utilities, public improvements, or improvements of any
kind disturbed or removed by a grantee in its activities under its
franchise shall be fully repaired or replaced promptly by a grantee
and as required elsewhere in this chapter and the franchise agreement
and as may be required in accordance with applicable grantor's streets
and sidewalks design standards and state law. Any such repair or replacement
shall be at the grantee's sole expense and to the reasonable satisfaction
of the grantor or owner thereof.
L.
Procedure for enforcement and administration relating to construction.
The grantor has the responsibility to manage and control use of the
rights-of-way or utility easements within the grantor's jurisdictional
boundaries. In accordance with applicable law, including ordinances
of general application, the grantor has the authority to administer
and enforce rights-of-way construction standards for the grantee's
cable system on a nondiscriminatory basis, including the authority
to collect permit fees, review plans, and enforce the provisions of
a franchise and may utilize the assistance of qualified independent
third parties.
(1)
Upon reasonable notice, the grantor has the right to inspect all
construction or installation work performed subject to the provisions
of this chapter and applicable franchises of the grantor; and to make
such tests as it shall find necessary to ensure compliance with the
terms of a franchise and applicable requirements of the grantor; provided,
however, a representative of the grantee is present for all such testing,
which shall occur during normal business hours (generally between
the hours of 9:00 a.m. and 5:00 p.m.).
(2)
Nothing in this chapter or a franchise granted pursuant to it gives
permission to use the poles, conduit or other facilities of the grantor
or others. A separate agreement for such use or connection shall be
the responsibility of the grantee.
M.
Work performed by others.
(1)
A grantee shall make available, upon request, to the grantor the
names and addresses of any person, contractor, subcontractor, agent,
representative or entity other than the grantee, which performs services
pursuant to a franchise; provided, however, that all provisions of
this chapter and a franchise remain the responsibility of a grantee.
(2)
All provisions of a franchise shall apply to any of a grantee's subcontractors
or others performing any work or services pursuant to the provisions
of a franchise.
A.
Parental control device. Upon request by any subscriber, the grantee
shall make available at the grantee's actual cost a parental control
or lockout device compatible with the subscriber's equipment that
will enable the subscriber to block access to any or all channels
in accordance with Sections 640 and 641 of the cable Act.
B.
Leased access channels. Leased access channels shall be provided
in accordance with Section 612 of the cable Act. A leased access channel
need not be activated or otherwise made available for any particular
user until such time as an agreement with respect to charges for said
channel has been reached between the grantee and said user. The grantee
shall charge no more for said channel use than that amount allowed
under federal or state law.
C.
Emergency use and safety alert. The grantee shall comply with all
emergency or disaster notification requirements in accordance with
and at the time required by the provisions of the then-applicable
valid law, including FCC regulations [47 CFR Part 11, FCC Rules and
Regulations, Emergency Alert system (EAS)] and provisions relating
to the grantor's Emergency Operations Plan (35 Pa. C.S.A. §§ 7101
to 7707) and the Pennsylvania Amber Alert system (35 P.S. § 7025.1
et seq.).
D.
Institutional network.
(1)
A grantee shall, if required in the franchise agreement, construct,
activate, and thereafter maintain an institutional network capable
of transmitting two-way voice, data and video signals. A specific
plan shall be made part of a franchise agreement.
(2)
The institutional network shall be designed and constructed so as
to interconnect public buildings, including educational institutions,
grantor facilities, libraries, police and fire departments and other
institutions as designated by the grantor.
E.
Access channels.
(1)
If required in the franchise agreement, the grantee shall make bandwidth
on its cable system available for up to two downstream channels for
noncommercial access programming use. Channel capacity for public
access shall be provided if required in a franchise and approved unanimously
by the CACC. Additional PEG channel capacity shall be made available
when, over a period of six consecutive months, 60% of the prime time
(7:00 p.m. to 11:00 p.m. each evening) on the existing access channel(s)
on average are fully occupied with locally produced access channel
programming. Such additional channel availability will be provided
within 180 days of the grantor's certification of such use and written
request for additional channel(s). The grantee shall offer to each
of its subscribers who receive all or any part of the cable services
offered on the system reception of the access channels. No charges
shall be made for channel time or playback of prerecorded programming.
Management of the access channels' programming shall be the responsibility
of the grantor, and not the responsibility of the grantee.
(2)
It shall be the grantee's sole responsibility to provide the cable,
wire, lines and/or other necessary signal distribution equipment such
that live or playbacks of access channel programming can be received
from the selected production location and be distributed via the cable
system to subscribers in the grantor. These cables, wires, lines and
other signal distribution equipment shall be collectively known as
the "Return Line."
(3)
Access channels may also be used by the grantee, when such channel
or channels are not being used by the grantor for access programming
and provided that such channel usage is subject to grantor approval
and displacement by the grantor upon 180 days' prior written notice
to the grantee if there is demand to use the access channel.
(4)
The grantee shall be responsible for the technical maintenance and
signal quality of such channels. Signal quality on such channels shall
be commensurate with those which apply to the grantee's regular commercial
channels and the grantee shall, upon request, provide copies of FCC
signal quality proofs of performance with respect to those channels.
F.
Access channel funding, facilities, and equipment.
(1)
The grantee shall provide financial support permissible under applicable
law as an equipment replacement and facilities capital grant payable
by the grantee to the grantor to support the cost of facilities and
equipment for development of programming for playback on access channels
in the amount and payable in a manner described in a franchise, and
may be itemized and passed through to the subscribers. The grantor
shall own and maintain all equipment purchased with equipment funding.
(2)
The grantee will provide access channel support as specifically agreed
to in the franchise agreement; and to periodically inspect and maintain
the return line to ensure that the technical quality of the retransmitted
access programming signal meets FCC regulations. The grantee will
not engage in any editorial control of the content of programming
on an access channel on the cable system, except as otherwise required
or permitted by law. The grantor shall be solely responsible for the
use of the access channels and shall indemnify and hold harmless the
grantee from any and all claims, demands, actions and damages (including
attorneys' fees) arising from the use or operation of the access channels.
(3)
Use of a channel position for public, educational, and/or governmental
("PEG") access shall be provided on the most basic tier of service
offered by the grantee in accordance with the cable Act, and a franchise
agreement.
(4)
The grantee shall insure that all access channels meet the technical
standards of the FCC; provided, however, the grantee shall not be
responsible for defects, flaws or other impairments in the access
channel programming delivered to the grantee and shall only be responsible
for maintenance for facilities and equipment under its control applicable
to the playback of programming on access channels of a grantee's system.
(5)
If the grantee makes changes to its cable system that necessitate
modifications to access channel(s) signal transmission facilities
and equipment (including but not limited to the upstream paths), the
grantee shall provide reasonable advance notice of such changes to
the grantor and shall provide, at the grantee's expense, any additional
or modified headend facilities necessary to implement such modifications
within a reasonable period of time prior to the date that the system
changes are to be made.
(6)
Upon request by the grantor, the access channels shall be made available
in digital formats comparable to commercial offerings at the time
the grantee converts 60% of its system to digital transmission.
A.
Open books and records. The grantor shall have the right to inspect,
upon 30 days' written notice, at any time during normal business hours
at the system office all books, records, maps, plans, financial statements
that directly relate to the franchise, cable service complaint logs
(trouble calls that have generated a work order and/or necessitated
a response originating from the grantor received during the prior
twelve-month period), performance test results, and other like materials
of the grantee that relate directly to the terms and conditions of
the franchise. Said books and records shall be made available for
inspection at the local business office of the grantee. Upon proper
request by a grantee and pursuant to Section 2.05 herein, information
obtained during such an inspection shall be treated as confidential,
making it available only to those persons who must have access to
perform their duties on behalf of the grantor, including but not limited
to financial personnel, solicitor's office, and members of the governing
body, if it is proprietary in nature or within the definitions of
closed records contained within the Pennsylvania Open Meetings Act,
§ 610.010, et seq.,[1] as amended from time to time. To the extent any federal
requirement for privacy applies to the information to be submitted,
said law shall control.
[1]
Editor's Note: The Public Agency Open Meeting law was repealed
7-3-1986 by P.L. 388, No. 84, § 17. For the Sunshine Act,
see 65 Pa.C.S.A. § 701 et seq.
B.
Communications with regulatory agencies. Copies of all petitions,
applications, communications and reports submitted by a grantee or
on behalf of or relating to the grantee to the FCC or any other federal
or state regulatory commission or agency having jurisdiction in respect
to any matters affecting the system authorized pursuant to this franchise
shall also be submitted to the grantor upon written request. Copies
of responses from the regulatory agencies to the grantee shall likewise
be furnished to the grantor within 30 days of receipt of the response.
C.
Annual report.
(1)
Upon written request, the grantee shall provide to the grantor within
30 days of such request:
(a)
A current financial statement for the immediately preceding
fiscal year, including an income statement, statement of operating
expenses in detail, a cash flow statement and a balance sheet prepared
in accordance with generally accepted accounting principles and certified
by a financial officer of the grantee. Submission of the most recent
U.S. Securities and Exchange Commission Annual Report Form 10-K prepared
by the grantee shall be deemed as a satisfactory compliance of this
section.
(b)
A description of all tiers or levels of service being offered
together with a description of any changes made in any service during
the reporting year.
(c)
A current copy of the subscriber service information required
in this chapter.
(d)
A trouble call report or compilation summarizing the complaints
received during the reported year by category, number for each category
and a discussion of any unresolved complaints.
(e)
A certification of the gross revenues derived from the grantor
area for the preceding year by the financial representative of the
company or, alternatively, an independent certified public accountant.
(f)
A description of how pay-per-view, on-demand, and other programming
is made available to basic-service-only subscribers.
(g)
A description of services, including modifications, upgrades,
or increases in channel capacity.
(2)
In any request for information pursuant to this section, the grantor
shall specifically identify the information to be provided by the
grantee to the grantor.
D.
Additional reports. The grantee shall prepare and furnish to the
grantor, at the times and in the form prescribed, such additional
reports which are deemed by the parties as reasonably necessary for
the administration and enforcement of this chapter and a franchise.
E.
Maps. The grantee shall maintain on file with the grantor at all times a current map or set of maps, either via paper or electronic format, drawn to scale showing the location of the system and all equipment installed or in place in rights-of-way and other public places. The maps shall be updated and made available in accordance with § 86-5B, hereinabove.
F.
Audit. The grantor and its agents and representatives shall have the authority, during normal business hours, to arrange for and conduct an inspection of the books and records of the grantee related to the payment of the franchise fee. The grantee shall first be given 30 days' written notice of the audit request, the description of and purpose for the inspection and description, to the best of the grantor's ability. To the extent such books, records or documents contain confidential information as defined in § 86-8A of this chapter, such confidential information may not be disclosed, as described in § 86-8A.
G.
Periodic evaluation, review and modification. The field of cable
service and technology is a relatively new and rapidly changing one
which may see many regulatory, technical, financial, marketing and
legal changes during the term of a franchise agreement. Therefore,
in order to provide for a maximum degree of flexibility in a franchise,
and to help achieve a continued advanced and modern cable system,
the following evaluation provisions will apply:
(1)
The grantor may require, at its sole discretion upon 45 days' written
notice, evaluation sessions at any time during the term of a franchise;
provided, however, there shall not be more than one evaluation session
during any three calendar years.
(2)
Topics which may be discussed at any evaluation session include,
but are not limited to the grantee's ability to comply with the legal,
financial, and technical requirements of the franchise; and meet the
cable-related needs of the community, and any other cable-related
topics the grantor or a grantee deem relevant.
(3)
During an evaluation session, a grantee shall fully cooperate with the grantor and shall provide without cost such information and documents as the grantor may request to perform the evaluation. To the extent such information or documents contain confidential information as defined in § 86-8A of this chapter such confidential information may not be disclosed.
(4)
If, at any time during its evaluation, the grantor determines that
a historical record of evidence exists of cable system performance
which fails to meet the requirements of this chapter, the grantor
may require a grantee to perform tests and analysis directed toward
such suspected inadequacies at a grantee's expense. A grantee shall
fully cooperate with the grantor in performing such testing, and any
report prepared by a grantee shall include at least:
(a)
A description of the problem in the cable system performance
which precipitated the special tests.
(b)
The cable system component tested.
(c)
The equipment used and procedures employed in testing.
(d)
The method, if any, by which the cable system performance problem
was resolved.
(e)
If, after receiving a grantee's report, the grantor determines
that reasonable evidence still exists of inadequate cable system performance,
the grantor may enlist an independent engineer to perform tests and
analysis directed toward such suspected failures to meet the requirements
of this franchise. A grantee shall be a witness to and cooperate and
permit said testing.
(5)
As a result of a periodic review and evaluation session, the grantor
or a grantee may determine that a change in the terms of the franchise
should be required to meet the cable-related needs of the community,
as determined by the grantor's governing body, that the cable system
or franchise requirements should be updated, changed, revised, or
that additional cable service should be provided and that to provide
same would be technically and economically feasible. If the change
is consistent with the terms of this chapter or the franchise, the
needs of the grantor, and is technically and economically feasible
as determined following an evaluation of a grantee's financial condition,
length of term remaining on the franchise, economic waste, if any,
that would occur should the terms be changed, and rate of return on
the investment within the community, the parties will, in good faith,
review the terms of the proposed change and any amendment to this
chapter or a franchise. Based on this review, and upon adoption of
such a change or new requirement through a mutually agreed upon and
acceptable amendment, the change will become effective.
A.
Approval of changes. The grantor reserves the right to regulate rates
for basic service and any other services offered over the cable system,
to the extent provided by federal or state law. In accordance with
the cable Act, the grantee shall maintain on file with the grantor
at all times a current schedule of all rates and charges.
B.
Subscriber complaint practices. At all times, a grantee shall meet
the requirements of the federal Communications Commission regulations
on consumer complaints and protection. However, at a minimum and in
accordance with 47 CFR § 76.309, as amended, a grantee shall
comply with the following:
(1)
A grantee shall maintain a conveniently located local office within
the CACC service area which shall be open during normal business hours.
This office shall accept payments, handle adjustments to subscriber
bills, respond to installation, repair, and/or maintenance requests
and other service calls. A grantee shall have a toll-free telephone
number available at all times (an access line which will be available
to its subscribers 24 hours a day, seven days a week). Trained company
representatives shall be available to respond to customer telephone
inquiries during normal business hours. Except in situations beyond
its control, the grantee must begin working on a service interruption
or other service problems no later than 24 hours after being notified
of the problem. If the problem cannot be resolved within 24 hours,
the customer shall be entitled upon request to a credit for one day's
service for each day of the outage. Under normal operating conditions,
telephone answer time by a customer representative, including wait
time, shall not exceed 30 seconds when the connection is made, and
the customer will receive a busy signal less than 3% of the time.
If the call needs to be transferred, transfer time shall not exceed
30 seconds. These standards shall be met no less than 90% of the time
under normal operating conditions, measured on a quarterly basis.
A grantee shall not be required to acquire equipment or perform surveys
to measure compliance with these standards unless an historical record
of complaints indicates a clear failure to comply. After normal business
hours, the access line may be answered by a service or an automated
response system.
(2)
A grantee may impose a charge reasonably related to a grantee's actual
cost incurred for a downgrade of service, except that no such charge
may be imposed when:
(3)
A grantee shall render efficient service, make repairs promptly and
interrupt cable service only for good cause and for the shortest time
possible. Such interruptions shall occur during periods of minimum
use of the cable system.
(4)
A grantee shall maintain adequate telephone lines and personnel to respond in a timely manner to schedule service calls and answer subscriber complaints or inquiries as required by this § 86-9B.
(5)
Subscriber requests for repairs of service interruptions shall be
responded to by a trained customer service representative on the next
business day. A grantee shall use best efforts to begin working on
service interruptions promptly and in no event later than 24 hours
after the interruption becomes known. A grantee shall begin actions
to correct other service problems the next business day after notification
of the service problem.
(6)
Subscriber requests for maintenance or repairs received on Saturdays
or Sundays shall be responded to by a customer service representative
on the next business day. A grantee shall use its best efforts to
begin working on service interruptions promptly and in no event later
than 24 hours after the interruption becomes known. The grantee shall
begin actions to correct other service problems the next business
day after notification of the service problem.
(7)
Service calls for maintenance or repair shall be performed in accordance
with the standards established by the FCC.
(8)
A grantee shall maintain an appointment-window alternative for installations,
service calls and other installation activities that will be either
a specific time or, at maximum, a four-hour time block during normal
business hours. A grantee shall not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled
appointment. If a customer service representative is running late
for an appointment with a customer and will not be able to keep the
appointment as scheduled, the customer shall be contacted. The appointment
shall be rescheduled, as necessary, at a time which is convenient
for the customer.
C.
Installation. A grantee shall make service available to all grantor residents based on the terms and conditions outlined in § 86-5 of this chapter.
D.
Subscriber information.
(1)
A grantee shall provide to all new subscribers and, at least once
a year, to existing subscribers, and upon request of a subscriber,
written subscriber service information which shall include, but not
be limited to, the following:
(a)
Products and services offered by the grantee;
(b)
Prices and options for programming services, including programming
carried on the system such that the programming information corresponds
to channel positioning;
(c)
Channel positions and programming carried on the cable system;
(d)
Installation policy and service maintenance and termination
procedures;
(e)
Billing and complaint procedures, including grantee's address,
telephone number and office hours; and
(f)
Instructions on how to use the cable service and any converters.
(2)
A grantee shall notify subscribers and the grantor no less than 30
days in advance of any changes in rates, programming services, or
channel positions, provided such change is within the control of the
grantee. The grantee shall not be required to provide prior notice
to subscribers of any rate change that is the result of a regulatory
fee, franchise fee or any other fee, tax, assessment or charge of
any kind imposed by any federal agency, the Commonwealth of Pennsylvania
or the grantor on the transaction between the grantee and the subscriber.
E.
Subscriber billing practices.
(1)
As mentioned hereinabove, the grantee shall notify each of its existing
subscribers at least once a year, all new subscribers, and upon request
of a subscriber, of its billing practices in accordance with FCC rules.
Bills shall be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic service
and premium tier service charges, if applicable, equipment charges
and any installation or repair charges. Bills shall state the billing
period, including an effective due date, the amount of current billing
and any relevant credits or past-due balances. The grantee shall not
assess late fees for nonpayment of a current bill until at least 30
days have elapsed since the mailing of the bill by the grantee.
(2)
As mentioned hereinabove, subscribers shall be notified of any changes
in rates, programming services or channel positions as soon as possible
through announcements on the cable system and/or in writing. Notice
must be given to subscribers a minimum of 30 days in advance of such
changes if the change is within the grantee's control.
(3)
The subscriber bill shall contain the following information presented
in plain language and format:
(a)
Name and address of the grantee;
(b)
The period of time over which each chargeable service is billed,
including prorated periods as a result of the establishment and termination
of service;
(c)
A fully itemized list of charges levied for programming services,
equipment provided, and other services or items offered, and a report
of all activity during the billing period, including optional charges,
rebates and credits;
(d)
The amount of the bill for the current billing period, separate
from any balance;
(e)
A grantee's telephone number and a statement that the subscriber
may call this number with any questions about the bill; and
(f)
The date on which payment is due from the subscriber.
(4)
The account of a subscriber shall not be considered delinquent until
at least 30 days have elapsed from the due date of the bill, which
shall be a date certain. The following provisions shall apply to the
imposition of late charges on subscribers:
(a)
A grantee shall not impose a late charge on a subscriber unless
a subscriber is delinquent and the grantee has given the subscriber
written notice of the delinquency.
(b)
A late charge of reasonable amount may be imposed monthly.
(c)
No late charge may be assessed on the amount of a bill in dispute
if found in favor of the subscriber.
(d)
Any charge for returned checks shall be reasonably related to
the costs incurred by a grantee in processing such checks.
(5)
In case of a billing dispute, a grantee shall respond to a written
complaint from a subscriber within 30 days. Refund checks shall be
issued promptly, but no later than either the customer's next billing
cycle following resolution of the request or 30 days, whichever is
earlier, or the return of the equipment supplied by the cable operator
if service is terminated. Credits for service shall be issued no later
than the customer's next billing cycle following the determination
that a credit is warranted.
F.
Mobility-limited subscribers. Unless otherwise agreed in a franchise
agreement, upon the request of mobility-limited subscribers, a grantee
shall make a good-faith effort to arrange for delivery, pickup or
exchange or replacement of converters or other equipment at the subscriber's
address or by the use of a satisfactory equivalent means such as provision
of a prepaid postage mailer.
G.
Dispute resolution.
(1)
Every grantee shall establish procedures for receiving, acting upon,
and resolving customer complaints, and crediting customer accounts,
without intervention by the grantor.
(2)
The grantee's complaint procedure shall be filed with the grantor
prior to its acceptance of a new or renewed franchise.
(3)
The grantee's investigation of a subscriber complaint shall be concluded
in no more than 30 days after receiving a written complaint, at which
time the grantee shall notify the subscriber of the results of its
investigation and its proposed action or credit.
(4)
In the event of a billing dispute, the grantee shall notify the subscriber
in full accordance with FCC customer service regulations regarding
billing and complaint procedures and provide the address and telephone
number of the grantor's cable office.
H.
Scrambling of cable channels. In accordance with Sections 640 and
641 of the cable Act, the grantee shall fully scramble or block the
audio and video programming of a channel upon request by a cable service
subscriber without charge.
A.
Payment to grantor.
(1)
As compensation for any franchise granted pursuant to this chapter,
a grantee for a cable system located in the rights-of-way, unless
negotiated in a franchise agreement, shall have the following obligations:
(a)
Application fee for initial franchise. In addition to all other
fees, permits or charges required by the grantor, an applicant for
an initial franchise shall pay to the grantor at the time of application,
or amendment to its application, $1,000 as a deposit on the application
fee. An applicant will be assessed an additional application fee at
the end of the review process should the grantor's actual costs of
reviewing the application exceed the deposit. This fee will be equal
to 100% of the grantor's costs (including administration overhead,
legal, consulting, etc.) for administrating the application and granting
a franchise. Any unused portion of the deposit shall be returned to
the applicant.
(b)
Franchise fees. Any grantee subject to the terms of this chapter
and a franchise agreement shall, in addition to any other fees, permits,
or charges by the grantor, commence making payment of franchise fees
on the effective date of a cable services franchise agreement or if
such grantee is already providing cable services over the cable system,
on the date of the passage of this chapter. Commencing on the specified
date, a grantee subject to the terms of this chapter shall pay to
the grantor an amount equal to 5% of its gross revenues for the provision
of cable services as defined in this chapter and generally in the
form as illustrated in Exhibit A,[1] attached and made part of this chapter by reference.
[1]
Editor's Note: Exhibit A is included as an attachment to this chapter.
(2)
Payments due the grantor under this provision shall be computed at
the end of each calendar year quarter. Payments shall be due and payable
for each quarter not later than 45 days from the last day of the three-month
period. Specifically, payments shall be due and payable on or before
May 15 (for the first quarter), August 15 (for the second quarter),
November 15 (for the third quarter), and February 15 (for the fourth
quarter). Each payment shall be accompanied by a brief report showing
the basis for the computation and such other relevant facts related
to the payment of the franchise fee as may be required by the grantor.
At the request of the grantor, and if agreed to by grantee, payments
will be made electronically.
(3)
No acceptance of any payment shall be construed as an accord that
the amount paid is in fact the correct amount, nor shall such acceptance
of payment be construed as a release of any claim the grantor may
have for further or additional sums payable under the provisions of
this franchise. All amounts paid shall be subject to audit and recomputation
by the grantor.
(4)
In the event any payment is not made on the due date, interest on
the amount due shall accrue from such date at the annual rate of 6%.
(5)
Bundled services.
(a)
If a grantee offers bundled, tied, or combined cable services
(which are subject to the franchise fee) with noncable services (which
are not subject to the franchise fee) to individual subscribers, the
combined revenues from such bundled services shall be allocated consistent
with the rates or prices advertised by the grantee through its marketing
materials or on its published rate card.
(b)
If the grantee does not advertise or publish separate prices
for the combined services, the percentage that the price for the combined
services is discounted from the regular retail rates of the individual
services shall be prorated across all the services in the bundled
package.
(c)
As an example, a grantee may offer a bundle of video, data,
and voice services for a flat fee of $75 where the retail rate for
the services purchased on an individual basis would equal $100. The
grantee would apply a discount of 25% to the revenue derived from
each service. Thus, if the retail rate for the cable service in the
bundle were $50, the grantee would recognize cable service revenue
in the amount of $37.50 and pay a franchise fee on that revenue.
(d)
In no event shall the grantee be permitted to evade or reduce
applicable franchise fee payments required to be made to the grantor
due to discounted bundled services.
B.
Application of franchise fees and other fees and charges.
(1)
The grantee acknowledges and agrees that the franchise fees payable
by the grantee to the grantor shall not be deemed to be in the nature
of a tax, and shall be in addition to any and all taxes of general
applicability and other generally applicable fees and charges which
the grantee may be required to pay to the grantor and/or to any other
governmental authority, all of which shall be separate and distinct
obligations of the grantee.
(2)
The grantee shall not deduct all or any part of the franchise fees
or other payments or in-kind contributions to be made by the grantee
to the grantor pursuant to this chapter and/or a franchise from the
franchise fees paid thereunder unless specifically agreed to in a
franchise agreement.
C.
Performance bond.
(1)
Except as may be described in a franchise, at the time a franchise
is accepted, a grantee shall furnish and file with the grantor a performance
bond. The performance bond shall run to the grantor in the sum of
as then determined in the franchise agreement. The performance bond
shall be conditioned upon the faithful performance of the grantee
of all terms and conditions of this chapter and a franchise. The rights
reserved to the grantor with respect to the performance bond or other
security are in addition to all other rights the grantor may have
under a franchise or any other applicable law. The company providing
such performance bond must be licensed to do business in the Commonwealth
of Pennsylvania.
(2)
The rights reserved by the grantor with respect to the performance
bond are in addition to all other rights the grantor may have under
a franchise or other applicable law.
(3)
The performance bond shall be subject to the approval of the grantor.
D.
Security fund.
(1)
Except as otherwise described in a franchise, at the time a franchise
is accepted, and, in lieu of a performance bond as required hereinabove,
a grantee shall deposit into a bank account, established by the grantor,
and maintain on deposit through the term of this franchise, the sum
of $10,000, unless otherwise provided in a franchise agreement, as
a common security fund for the faithful performance by it of all the
provisions of this chapter, the franchise and compliance with all
orders, permits and directions of the grantor and the payment by a
grantee of any claim, liens, costs, expenses and taxes due the grantor
which arise by reason of the construction, operation or maintenance
of the cable system. Interest on this deposit shall be paid to the
grantee by the bank on an annual basis.
(2)
Provision shall be made to permit the grantor to withdraw funds from
the security fund. The grantee shall not use the security fund for
other purposes and shall not assign, pledge or otherwise use this
security fund as security for any purpose. The grantor reserves the
right to increase the required amount of the security fund to match
changes in the Consumer Price Index for All Items and All Urban Consumers.
(3)
If a grantee fails to pay to the grantor any amounts due and unpaid to grantor; or fails to pay to the grantor any liquidated damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of a grantee in connection with this chapter and a franchise, the grantor may then withdraw such funds from the security fund. Payments are not franchise fees as required in § 86-10A, or as otherwise described in a franchise agreement.
E.
Procedure for imposition of penalties.
(1)
If the grantor is able to demonstrate that the grantee violated any
provision of this chapter or franchise agreement, it shall promptly
notify the grantee in writing of the nature of such violation and
the section of this chapter or franchise agreement that it believes
has been violated. If the grantor does not notify the grantee of any
violation of this chapter or franchise agreement, it shall not operate
as a waiver of any rights of the grantor hereunder or pursuant to
applicable law.
(2)
The grantee shall have 45 days to cure such violation after written
notice is received by taking appropriate steps to comply with the
terms of this chapter or franchise agreement. If the nature of the
violation is such that, in the grantor's reasonable judgment, it cannot
be fully cured within 45 days due to circumstances outside of the
grantee's control, the period of time in which the grantee must cure
the violation may be extended by the grantor in writing for such additional
time necessary to complete the cure, provided that the grantee shall
have promptly commenced to cure and is diligently pursuing its efforts
to cure in the reasonable judgment of the grantor.
F.
Liquidated damages and opportunity to cure.
(1)
Because the grantee's failure to comply with provisions of this chapter or franchise agreement may result in harm to the grantor and because it will be difficult to measure the extent of such harm, the grantor may assess liquidated damages against the grantee in the following amounts, provided the grantee has had an opportunity to cure in accordance with § 86-10E(2) of this chapter. Such damages shall not be a substitute for specific performance by the grantee but shall be in addition to such performance.
(2)
The first day for which liquidated damages may be assessed, if there
has been no cure after the end of the applicable cure period, shall
be the day after the end of the applicable cure period, including
any extension of the cure period granted by the grantor. Liquidated
damages may not be assessed for a time period exceeding 120 days,
after which the grantor may initiate an action in law or equity in
a court of competent jurisdiction.
(3)
The grantor may assess liquidated damages against the grantee in the following amounts, provided the grantee has had an opportunity to cure in accordance with § 86-10E(2) of this chapter:
(a)
For failure to provide and maintain cable service as required,
$200 per day for each day the violation continues;
(b)
For failure to obtain and maintain permits as required, $200
per day for each day the violation continues;
(c)
For failure to give notices required in this chapter or franchise
to grantor as required, $200 per day for each day the violation continues;
(d)
For failure to comply with any customer service provisions as
required, $200 per day for each day the violation continues;
(e)
For failure to submit reports in a timely fashion as required,
$150 per day for each day the violation continues; and
(f)
For failure to comply with any material provision of the franchise,
$150 per day for each day the violation continues.
G.
Liability insurance.
(1)
A grantee shall maintain, throughout the term of a franchise agreement and as may be further described therein, liability insurance with a company licensed to do business in the Commonwealth of Pennsylvania with a rating by A.M. Best of not less than A-minus VII, insuring the grantee and the grantor with regard to all damages mentioned in § 86-10F(1) of this chapter, in the minimum amounts of:
(2)
At the time of acceptance of a franchise, and upon request, the grantee
shall furnish to the grantor a certificate evidencing that a satisfactory
insurance policy has been obtained. Said certificate shall be approved
by the grantor, and such insurance policy shall require that the grantor
be notified 30 days prior to any expiration or cancellation.
(3)
All insurance policies maintained pursuant to this § 86-10G shall contain the following or similar endorsement:
|
"Should any of the policies described herein be canceled before
the expiration date thereof, the insurer affording coverage will endeavor
to mail 30 days' written notice to the certificate holder named herein,
out failure to mail such notice shall impose no obligation or liability
of any kind upon the insurer affording coverage, its agents, or representatives,
or the insurer of this certificate."
|
(4)
A grantee will replace such insurance to conform to this chapter
by promptly filing evidence of proof of insurance with the grantor
before termination of any existing insurance.
H.
Grantor's right to revoke. In addition to all other rights which
the grantor has pursuant to law or equity, the grantor reserves the
right to initiate revocation proceedings, and all rights and privileges
pertaining thereto, in the event that:
(1)
It is demonstrated that the grantee substantially and materially
violated any material provision of this franchise or state, federal
or local law applicable to the grantee's operation of a cable system
within the grantor.
(2)
It is demonstrated that the grantee repeatedly violates, after notice
and opportunity to cure, any of the material provisions of the franchise
or provision of valid applicable state, federal or local law and refuses
to cure it.
(3)
A grantee is found to have practiced any fraud or deceit upon the
grantor or subscriber.
(4)
A grantee is found to have knowingly misrepresented a material fact
in the application for, negotiation of, renegotiation of, or renewal
of the franchise.
I.
Revocation procedures. In the event that the grantor determines that a grantee has violated any material event as set forth in § 86-10H of this chapter, or any generally applicable material federal, state or local law, the grantor may make a written demand on a grantee that it remedy such violation and that continued violation may be cause for revocation. If the violation, breach, failure, refusal, or neglect is not remedied to the satisfaction of the grantor within 45 days following such demand, the grantor shall determine whether or not such violation, breach, failure, refusal or neglect by the grantee is due to acts of God or other causes which result from circumstances beyond the grantee's control.
(1)
The grantor may schedule a public hearing, and the grantee shall
be provided with an opportunity to be heard. This opportunity shall
include the ability to introduce evidence, to question witnesses and
to respond to any notice of grounds to terminate in accordance with
the standards of a fair hearing applicable to administrative hearings
in the Commonwealth of Pennsylvania. The causes for pending revocation
and the reasons alleged to constitute such cause shall be recited
in a notice to a grantee prior to the public hearing. Said notice
shall affirmatively recite the causes that need to be shown by the
grantor to support a revocation. All notice requirements shall be
met by providing the grantee at least 45 days' prior written notice
(via certified mail, return receipt requested) of any public hearing
concerning the proposed revocation of a franchise.
(2)
If notice is given and after a public hearing is held, the grantor
determines there is a violation, breach, failure, refusal or neglect
by a grantee, the grantor shall state in writing the grounds for its
decision and give notice to a grantee to correct or remedy the same
within such reasonable additional time, in such manner and upon such
reasonable terms and conditions as the grantor may direct.
(3)
If after a public hearing or hearing by a hearing officer, designated
by the grantor, it is determined that a grantee's performance of any
of the terms, conditions, obligations, or requirements of the franchise
was prevented or impaired due to any cause beyond its reasonable control
or not reasonably foreseeable, such inability to perform shall be
deemed to be excused, and no penalties or sanctions shall be imposed
as a result thereof, provided the grantee has notified the grantor
in writing within 30 days of its receipt of notice of the breach of
said cause. Such causes beyond a grantee's reasonable control or not
reasonably foreseeable shall include, but shall not be limited to,
acts of God, civil emergencies and labor strikes.
(4)
If, after notice is given and opportunity to cure, at a grantee's
option, a public hearing is held, the grantor determines there was
a violation, breach, failure, refusal or neglect, then the grantor
may declare, by formal resolution, a franchise revoked and canceled
and of no further force and effect unless there is compliance within
such period as the grantor may fix, such period not to be less than
30 days, provided no opportunity for compliance need be granted for
fraud or misrepresentation.
(5)
The issue of revocation shall automatically be placed upon the agenda
of the grantor's governing body at the expiration of the time set
by it for compliance. The grantor then may terminate a franchise forthwith
upon finding that a grantee has failed to achieve compliance or may
further extend the period, in its discretion.
(6)
If the grantor, after notice is given and, at a grantee's option,
a full public proceeding is held and appeal is exhausted, declares
a franchise breached, the parties may pursue their remedies pursuant
to a franchise or any other remedy, legal or equitable.
A.
Foreclosure. Upon the foreclosure or other judicial sale of the system,
the grantee shall notify the grantor of such fact, and such notification
shall be treated as a notification that a change in control of the
grantee has taken place, and the provisions of this franchise governing
the consent to transfer or change in ownership shall apply without
regard to how such transfer or change in ownership occurred.
B.
Abandonment. The grantee may not abandon any portion of the cable
system thereof without having first given three months' written notice
to the grantor. The grantee may not abandon any portion of the cable
system without compensating the grantor for damages resulting from
the abandonment.
A.
Removal after revocation or denial of renewal.
(1)
Upon denial of renewal of a franchise, or upon its revocation, as
provided for, the grantor shall have the right to require a grantee
to remove within two years, at a grantee's expense, all or any portion
of the cable system from all rights-of-way and public property within
the grantor. In so removing the cable system, a grantee shall refill
and compact, at its own expense, any excavation that shall be made
and shall leave all rights-of-way, public property and private property
in as good a condition as that prevailing prior to the grantee's removal
of the cable system, and without affecting, altering or disturbing
in any way electric, telephone or utility cables, wires or attachments.
The grantor, or its delegation, shall have the right to inspect and
approve the condition of such rights-of-way and public property after
removal. Under no circumstance including, without limitation, revocation,
or denial of renewal of a franchise or any other action to forbid
or disallow the grantee from providing cable services, shall the grantee
or its assignees be required to sell any right, title, interest, use
or control of any portion of the grantee's facilities, including,
without limitation, the cable system and any capacity used for cable
service or otherwise, to the grantor or any third party. The grantee
shall not be required to remove or to relocate the plant that facilitates
Internet access, digital voice, or other such services not governed
by Title VI of the Communications Act of 1934, as amended, or any
portion thereof as a result of revocation, denial of renewal or any
other action to forbid or disallow the grantee from providing cable
services.
(2)
Except as otherwise provided in Subsection A(1) of this section, if a grantee has failed to complete such removal within the time given under § 86-12A(1) of this chapter, after written notice of the grantor's demand for removal is given, the grantor shall have the right to exercise one of the following options:
(a)
Declare all right, title and interest to the cable system to
be in the grantor or its delegator with all rights of ownership, including,
but not limited to, the right to operate the cable system or transfer
the cable system to another for operation by it; or
(b)
Declare the cable system abandoned and cause the cable system,
or such part thereof as the grantor shall designate, to be removed
at no cost to the grantor. The cost of said removal shall be recoverable
from the security fund, indemnity and/or penalty section provided
for in a franchise, or from a grantee directly.
B.
Sale or transfer of franchise.
(1)
A franchise shall not be sold, assigned or transferred (including
through inheritance), either in whole or in part, used as collateral
for any loan or loans, or leased or sublet in any manner, nor shall
title thereto, either legal or equitable, or any right, interest or
property therein, pass to or vest in any person without full compliance
with the procedure set forth in this section.
(2)
Neither the grantee nor its parent nor any affiliated entity shall
transfer, assign or otherwise encumber, through its own action or
by operation of law, its right, title or interest in the cable system
or in a franchise agreement without the prior written consent of the
grantor. Neither the grantee nor its parent nor any affiliated entity
shall sell, convey, transfer, exchange or release more than 50% of
its equitable ownership in the cable system without the prior written
consent of the grantor. No such consent shall be required for a transfer
in trust, by mortgage, hypothecation, or by assignment to a financial
institution of any rights, title or interest of the grantee in the
franchise or in the cable system in order to secure indebtedness;
or a transfer to an entity owned and/or controlled by the grantee.
(a)
The parties to the sale or transfer shall make a written request
to the grantor for its approval of a sale or transfer. The written
request shall not be deemed complete until all information required
by the grantor in accordance with applicable FCC regulations is provided
to the grantor. Upon receipt of a complete written request with all
application information, including the legal, financial and technical
qualifications of the transferee, the grantor shall have 120 days
to grant or deny such approval. Within 30 days of the request, in
accordance with FCC rules and regulations, the grantor shall notify
the grantee in writing of the additional information, if any, it requires
to determine the legal, financial and technical qualifications of
the transferee or new controlling party.
(b)
The grantor shall reply in writing within 30 days of the request
and shall exercise its determination that a public hearing is necessary.
(c)
If a public hearing is deemed necessary pursuant to Subsection
B2(b) above, such hearing shall be commenced within 30 days of such
determination, and notice of any such hearing shall be given 14 days
prior to the hearing by publishing notice thereof. The notice shall
contain the date, time and place of the public hearing and shall briefly
state the substance of the action to be considered by the grantor.
(d)
Within 30 days after the closing of the public hearing, the
grantor shall approve or deny in writing the sale or transfer request.
If the grantor has not taken final action on the grantee's request
for consent within 120 days after receiving such request, consent
shall be deemed granted.
(e)
Any consent by the grantor for any transfer described above
shall not be effective until the proposed transferee or assignee shall
have executed a legally binding agreement stating that it shall be
bound by all the terms and conditions contained in the franchise.
C.
Purchase by grantor upon denial of renewal or revocation.
(1)
Upon lawful denial of renewal or revocation of the franchise, the
grantor may, in lawful manner and upon the payment of fair market
value, mutually determined by the grantor and grantee, lawfully obtain,
purchase, condemn, acquire, take over and hold the cable system.
(2)
Upon the revocation of a franchise, the grantor may, in lawful manner
and upon the payment of an equitable price, lawfully obtain, purchase,
and condemn, in accordance with such proceedings governed by federal
and/or state law, take over and hold the cable system.
A.
Unfair discriminatory practices prohibited. In the performance of
a franchise, a grantee shall not discriminate unfairly against any
person on the ground of or because of race, creed, color, national
origin or ancestry, gender, religion or political opinion or affiliation,
income of residents in any area of the grantor, or age. A grantee
shall comply at all times with all other valid applicable federal,
state and local laws, and all federal and state executive and administrative
orders relating to nondiscrimination.
B.
Subscriber privacy.
(1)
Absent a court order or requirement of federal or state law, no signal
of a channel may be transmitted from a subscriber terminal for purposes
of monitoring individual viewing patterns or practices without the
express written permission of the subscriber; provided, however, that
the grantee may conduct system-wide or individually addressed sweeps
solely for the purpose of verifying system integrity, checking for
illegal taps, controlling return-path transmission, billing for pay
services or monitoring channel usage in a manner not inconsistent
with the federal law. The grantee shall not record or retain any information
transmitted between a subscriber and any third party, except as required
for lawful business purposes. The request for such permission shall
be contained in a separate document with a prominent statement that
the subscriber is authorizing the permission in full knowledge of
its provisions. Such written permission shall be for a limited period
of time not to exceed one year which shall be renewed at the option
of the subscriber. No penalty shall be invoked for a subscriber's
failure to provide or renew such authorization. The authorization
shall be revocable at any time by the subscriber without penalty of
any kind whatsoever. Such permission shall be required for each type
or classification of cable communications activity planned for the
purpose of monitoring individual viewing patterns or practices.
(2)
No information or data obtained by monitoring transmission of a signal
from a subscriber terminal, or any other means, including but not
limited to, lists of the names and addresses of such subscribers or
any lists that identify the viewing habits of subscribers shall be
sold or otherwise made available to any party other than to a grantee
and its employees for internal business use, and also to the subscriber
subject of that information, unless a grantee has received specific
written authorization from the subscriber to make such data available.
A.
Compliance with laws. A grantee and the grantor shall act reasonably
and in good faith, deal fairly, and cooperate with each other to enable
performance of all obligations under this chapter and achievements
of the expected benefits. A grantee shall conform to all grantor ordinances,
resolutions, rules and regulations heretofore or hereafter adopted
or established during the entire term of a franchise agreement which
conform with generally applicable grantor ordinances.
B.
Continuity of service mandatory. Upon revocation or lawful denial
of renewal of a franchise agreement, the grantor may require a grantee
to continue to operate the cable system for an extended period of
time not to exceed six months. A grantee shall, as trustee for its
successor in interest, continue to operate the cable system under
the terms and conditions of a franchise agreement. In the event a
grantee does not so operate the cable system, the grantor may take
such steps as it, in its sole discretion, deems necessary to assure
continued service to subscribers.
C.
Work performed by others.
(1)
All provisions of this franchise shall remain the responsibility of a grantee, and a grantee shall be responsible for and hold the grantor harmless for any claims or liability arising out of work performed by persons other than a grantee in accordance with § 86-2H of this chapter. The grantee shall further provide all emergency contact information (name, address, phone number, etc.) for the grantee employee responsible for said entity.
(2)
All provisions of this chapter and a franchise shall apply to any
subcontractor or others performing any work or services pursuant to
the provisions of a franchise.
D.
Compliance with federal, state and local laws.
(1)
Conflict of law. If any federal, state or local law or regulation
requires or permits a grantee or the grantor to perform any service
or act or shall prohibit a grantee or the grantor from performing
any service or act which may be in conflict with the terms of a franchise,
then as soon as possible following knowledge thereof, the grantor
and a grantee may, by mutual agreement and in accordance with such
change in law, modify a franchise agreement.
(2)
Severability. If any term, condition or provision of this chapter
or a franchise or the application thereof to any person or circumstance
shall, to any extent, be rendered invalid or unenforceable as in conflict
with any law, rule or regulation of a superior governmental body,
the remainder hereof and the application of such term, condition or
provision to persons or circumstances other than those as to whom
it shall be held invalid or unenforceable shall not be affected thereby,
and this chapter and a franchise and all the terms, provisions and
conditions thereof shall, in all other respects, continue to be effective
and to be complied with. In the event that such law, rule or regulation
is subsequently repealed, rescinded, amended or otherwise changed
so that the provision which had been held invalid or modified is no
longer in conflict with the law, rules and regulations then in effect,
said provision shall thereupon return to full force and effect and
shall thereafter be binding on a grantee and the grantor.
(3)
In the event that any court or other authority of competent jurisdiction
declares any section, provision or clause of this chapter and a franchise
to be unlawful, invalid or unenforceable, or is preempted by federal
or state laws or regulations, such section, provision or clause shall
be deemed to be severable from the remaining portions of this agreement
and shall not affect the legality, validity or enforceability of the
remaining portions of this agreement.
E.
Nonenforcement by grantor. A grantee shall not be relieved of its
obligation to comply with any of the provisions of this chapter or
a franchise by reason of any failure of the grantor to enforce prompt
compliance.
F.
Administration of a franchise.
(1)
The grantor or its designee shall have continuing regulatory jurisdiction
and supervision over the cable system and a grantee's operation under
a franchise.
(2)
A grantee shall construct, operate and maintain the cable system
subject to the supervision of all the authorities of the grantor who
have jurisdiction in such matters and in strict compliance with all
applicable laws, ordinances, departmental rules and regulations affecting
the cable system.
(3)
Upon reasonable written notice and in accordance with the applicable provisions contained in § 86-5H of this chapter and a franchise, a cable system and all parts thereof shall be subject to the right of periodic inspection by the grantor, provided that such inspection shall not interfere with the operation of the cable system and such inspections take place during normal business hours with a representative of the grantee present.
G.
Miscellaneous violations.
(1)
Except as otherwise permitted by applicable law, from and after the
acceptance of the franchise, it shall be unlawful for any person to
establish, operate or to carry on the business of distributing to
any persons in the grantor any video signals or audio signals by means
of a cable system using rights-of-way unless a franchise therefor
has first been obtained pursuant to the provisions of this chapter,
and unless such franchise is in full force and effect.
(2)
Unless permitted by law, from and after the acceptance of a franchise,
it shall be unlawful for any person to construct, install or maintain
within any rights-of-way in the grantor, or within any other public
property of the grantor, or within any privately owned area within
the grantor which has not yet become a right-of-way but is designated
or delineated as a proposed right-of-way on any tentative subdivision
map approved by the grantor, or the grantor's official map or the
grantor's major thoroughfare plan, any cable system, unless a franchise
authorizing such use of such rights-of-way or property or areas has
first been obtained.
H.
Emergency use. The grantee shall comply with the emergency alert
provisions set forth by the FCC, set forth under 47 CFR Part 11, FCC
Rules and Regulations, Emergency Alert system (EAS). To the extent
required by federal and state law, the grantee shall assist the grantor
in working with the Centre County Office of Emergency services and
the Centre Region Emergency Management Council in the establishment
of an emergency response plan.
I.
Controlling law. This chapter and a franchise shall be construed
and enforced in accordance with the substantive laws of the Commonwealth
of Pennsylvania except to the extent the Supremacy Clause of the United
states Constitution requires application of federal law.
J.
Captions. The paragraph captions and headings in a franchise are
for convenience and reference purposes only and shall not affect in
any way the meaning or interpretation of a franchise.
K.
Calculation of time. Where the performance or doing of any act, duty,
matter, payment or thing is required hereunder and the period of time
or duration for the performance or during thereof is prescribed and
fixed herein, the time shall be computed so as to exclude the first
and include the last day of the prescribed or fixed period or duration
of time. When the last day of the period falls on Saturday, Sunday
or a legal holiday, that day shall be omitted from the computation.
L.
Court jurisdiction. Except as may be permitted by applicable court
rules, any proceedings relating to this chapter or a franchise granted
pursuant to it will be venued in the courts of Centre County, Pennsylvania.
M.
Force majeure. The grantee shall not be held in default under, or
in noncompliance with, the provisions of the ordinance or franchise,
nor suffer any enforcement or penalty relating to noncompliance or
default (including termination, cancellation or revocation of the
franchise), where such noncompliance or alleged defaults occurred
or were caused by strike, riot, war, earthquake, flood, tidal wave,
unusually severe rain- or snowstorm, hurricane, tornado or other catastrophic
act of nature, labor disputes, failure of utility service necessary
to operate the cable system, governmental, administrative or judicial
order or regulation or other event that is reasonably beyond the grantee's
ability to anticipate or control. This provision also covers work
delays caused by waiting for utility providers to service or monitor
their own utility poles on which the grantee's cable or equipment
is attached, as well as unavailability of materials or qualified labor
to perform the work necessary.
N.
No third-party beneficiaries. Nothing in this chapter or the grantee's
franchise agreement is or was intended to confer third-party beneficiary
status on any member of the public to enforce the terms of this chapter
or the franchise agreement.
A.
Publication; effective date. A franchise shall be signed by the designated
head of the governing body, the Mayor, or acting Mayor, and attested
by the grantor Manager/Secretary. The franchise shall be published
in accordance with the requirements of grantor and state law and shall
take effect upon acceptance by the grantee.
B.
Time of acceptance; incorporation of proposal; exhibits.
(1)
A grantee shall have 30 days from the date of adoption of a franchise
by the grantor to accept a franchise and written evidence of the authority
of the person signing the Acceptance and franchise agreement has been
so authorized. Such acceptance by the grantee shall be deemed the
grant of a franchise for all purposes. In the event acceptance does
not take place within 30 days or such other time as the grantor might
allow, a franchise shall be null and void.
(2)
Upon acceptance of a franchise, a grantee shall be bound by all the
terms and conditions contained in this chapter and the franchise.
(3)
With its acceptance, a grantee shall also deliver any security deposit,
insurance certificates, and/or performance bonds as required in this
chapter and in a franchise agreement.
