[Adopted 3-9-1978 by Ord. No. 381, approved 3-11-1978]
In consideration of the faithful performance and observance
of the terms, conditions and reservations hereinafter specified, the
Borough Council of the Borough of Colwyn, hereinafter referred to
as "Borough," grants the nonexclusive franchise to the Delaware County
Cable Television Company, hereinafter referred to as "company," to
install, construct, own, operate and maintain a community antenna
cable television system and to erect, maintain and operate television
transmission and distribution facilities, and additions thereto, in,
under, over, along, across and upon the streets, lanes, avenues, sidewalks,
alleys, bridges and other public places in the Borough of Colwyn,
Delaware County, Pennsylvania, for the purpose of transmission and
distribution of audio and visual signals and television energy in
accordance with the laws and regulations of the United States of America
and the Commonwealth of Pennsylvania, appropriate agencies, and the
Federal Communications Commission Rules and Regulations, and the ordinances
and regulations of the Borough of Colwyn now in effect or hereafter
enacted. The company shall observe the following conditions and terms:
A.
No poles or wires shall be erected, constructed or maintained by
the company along public highways which contain neither aerial telephone
nor aerial electric facilities or from which both aerial telephone
and aerial electric facilities are hereafter removed. Where all other
utilities are underground, the company's cable facilities shall
be placed underground.
B.
Where the wires and other aerial facilities of the company are erected,
constructed, maintained or operated along or over public highways
which contain an aerial electric or telephone pole line or a joint
use electric and telephone pole line, the wires and other facilities
of the company shall be supported by attachment to such pole line;
but nothing in this subsection shall relieve the company of the duty
of securing the consent of the owner of such pole line for such attachment.
C.
Poles, ducts and other facilities of the company shall be so erected,
constructed and maintained as not to interfere with the traffic over
the public highways. No new poles shall be erected without prior approval
of the Borough Council, which approval shall not be unreasonably withheld.
D.
Poles, lines, cables, ducts and other facilities of the company shall
be removed by the company when no longer used or useful for their
intended purpose or whenever required by the Borough in connection
with any public improvement or other reasonable cause at the company's
expense.
E.
Any public highways, sidewalks and abutting property disturbed or
damaged in the erection, construction, maintenance or operation of
the facilities of the company shall be promptly repaired by the company
to the reasonable satisfaction of the Borough Engineer.
The company shall substantially complete physical installation
of its equipment and facilities within the Borough within five years
after receipt of the certificate of compliance from the Federal Communications
Commission.
The duration of the rights, privileges and authorities hereby
granted shall be 15 years from the date of acceptance of the ordinance
by the company, provided that the company shall have the option of
extending this franchise for an additional period of 10 years upon
application by the company not later than one-year prior to the expiration
date of the initial fifteen-year franchise, and the option of extending
this franchise for an additional period of five years upon application
by the company in writing one-year prior to the expiration date of
the additional ten-year franchise, provided further that such renewal
of this franchise is specifically conditioned upon review and approval
by the Borough of Colwyn at a public proceeding affording due process
of the company's qualifications and performance, the adequacy
of the franchise provisions and its consistency with the rules and
regulations of the Federal Communications Commission.[1]
[1]
Editor's Note: This franchise was extended for an additional
period of 15 years 6-10-1993 by Ord. No. 478, subject to the terms
and conditions contained therein.
This franchise is conditioned and contingent upon the company
filing with the Council its unconditional acceptance of this franchise
as set forth in this ordinance and the company's promise to comply
with and abide by all provisions, terms and conditions of this ordinance.
Such acceptance and promise shall be in writing duly executed and
sworn to by and on behalf of the company before a notary public or
other officer authorized by law to administer oaths and delivered
to the Secretary of the Borough within 30 days after passage of this
ordinance.
A.
The company shall indemnify, hold harmless and defend the Borough,
its agents, officers, servants and employees from and against any
and all costs, expenses (including reasonable counsel fees), liabilities,
losses, damages, suits, actions, fines, penalties, claims or demands
of any kind asserted by or on behalf of any person or governmental
agency or authority arising out of or in any way connected with any
of the following, and the Borough, its agents, servants, officers
and employees shall not be liable to the company on account of any
of the following:
(1)
Any failure by the company to abide by, keep or perform any of the
terms, conditions or provisions of this franchise;
(2)
Any failure by the company to comply with any statutes, ordinances,
regulations or orders of any governmental authority;
(3)
Any bodily injury (including death) or property damage arising with
respect to this franchise; or
(4)
Any act or activity relating to the granting of this franchise to
the company or to the operations conducted thereunder.
B.
In connection with any suit or other proceeding in which the Borough,
its agents, servants, officers and employees shall be made a part,
involving this franchise or any act or activity conducted thereunder
or relating thereto and which may have any direct effect upon the
Borough, its agents, servants and employees, the company, upon the
written request of the Borough, shall come in and defend such suit
on behalf of the Borough, its agents, servants and employees and shall
bear all of the costs and expenses relating thereto.
C.
The company shall maintain throughout the term of this franchise
general liability insurance insuring the Borough and the company with
regard to all liabilities and contingencies mentioned in Subsection
A herein in the minimum amounts of:
D.
The company shall maintain throughout the term of this franchise
a performance bond in favor of the Borough, with a good and sufficient
surety approved by the Borough, in the sum of $20,000 conditioned
upon the company's well and truly performing its several obligations
as set forth in this franchise, and provided that in the event of
any failure by the company to so perform, the Borough may proceed
against the surety either to obtain proper performance of such obligations
of the company or to be recompensed for the failure of the company
to render such proper performance.
E.
The insurance policy and bond obtained by the company in compliance
with this section must be approved by the Council, which approval
shall not unreasonably be withheld, and such insurance policy and
bond shall be filed and maintained with the Council during the term
of this franchise.
F.
Neither the provisions of this section, nor any bond accepted by
the Borough pursuant thereto, shall be construed as excusing faithful
performance by the company or as otherwise limiting the liability
of the company under this franchise.
The company shall render efficient service and make repairs
promptly, and interruptions, insofar as possible, shall be preceded
by notice and shall occur during minimum use of the system. Upon receipt
of a complaint of the quality of service, equipment malfunctions and
similar matters, the company shall promptly investigate such complaints.
Where possible, the company shall investigate such complaints within
24 hours of their receipt. Resolution of such service complaints shall
be made promptly. For the purpose of investigation and resolution
of regular service complaints, the company shall maintain an agent
or a local business office convenient to the Borough. In addition,
the company shall maintain a toll-free business telephone for the
receipt of complaints and requests for repairs or adjustment.
The company agrees and shall, upon request of the Borough or
the institution involved, extend without charge one primary or standard
line available to each fire station, police station, public school,
private school, parochial school, public library, municipal building
and such public auditoriums and institutions as are requested by the
Borough in the Borough. Such service shall consist of one television
outlet within the building or, in the case of a group of buildings,
within the main building of the group, providing service to one television
receiver. The company shall not be required to install additional
outlets at its expense but shall, at the request of the Borough, install
such additional outlets or other facilities as may be requested, and
the Borough or the institution involved shall pay the company on a
time-and-material basis for such additional installation and shall
pay the company in accordance with its schedule of rates as set forth
in this ordinance for such additional service.
A.
In the use and occupation of the surfaces, subsurfaces, space above,
below and adjoining the streets, public ways and places of the Borough,
the company's equipment and plant and their construction, operation
and maintenance shall be in accordance with the provisions of the
following:
(1)
The National Electrical Code of the National Board of Fire Underwriters.
(2)
The Standards and Practices Code of the National Community Television
Association.
(3)
Such applicable ordinances, codes, laws and regulations of the Borough
of Colwyn, County of Delaware, State of Pennsylvania, and the United
States of America, which are now in effect or hereafter enacted.
B.
The company's equipment and plant shall be kept and maintained
in a safe, suitable and substantial condition and in good order and
repair so as not to endanger the lives or interfere unreasonably with
the rights of persons, or to cause physical damage to property, or
to interfere with improvements the Borough may deem proper, or to
hinder or obstruct unnecessarily pedestrian or vehicular traffic on
streets, public ways and places.
C.
Where the Borough or a public utility serving the Borough desires
to make use of the poles or other wire-holding structures of the company
but agreement therefor with the company cannot be reached, the Council
may require the company to permit such use for such consideration
and upon such terms as the Council shall determine to be just and
reasonable if it is determined by the Council that the use would enhance
the public convenience and would not unduly interfere with the company's
operations.
D.
The company shall, upon not less than 72 hours' advance notice,
temporarily raise, lower or relocate its wires and cables to permit
the moving of buildings or any other item of bulk, and the expenses
incurred by the company in such raising, lowering or relocation shall
be paid, in advance, by the person or concern requesting the same.
E.
The company shall, at its own cost and expense, replace, restore
or repair any private property, street, sidewalk, alley, public way
or paved area destroyed or damaged by the company or its agents, employees
or servants.
F.
If at any time during the term of this franchise the Borough shall
elect to alter or change the grade of any street, sidewalk, alley
or other public way, or when required by reason of traffic conditions,
public safety, street vibration, freeway and street construction,
installation of sewers, drains, water pipes, power lines, signal lines
and tracks or any other type of structure or improvements, when acting
in a governmental or proprietary capacity, the company, upon reasonable
notice by the Borough, shall remove, relay and relocate its poles,
wires, cables, underground conduits, manholes and other fixtures at
its own cost and expense.
It shall be the policy of the Borough to liberally amend this
franchise, upon application of the company, when necessary to enable
the company to take advantage of any developments in the field of
television and radio signals which will afford it an opportunity more
effectively, efficiently or economically to service its customers;
provided, however, that this section shall not be construed to require
the Borough to make any amendment or to prohibit it from unilaterally
changing its policy stated herein.
A.
In the event that the use of any part or all of the CATV system is
discontinued for any reason for a continuous period of 12 months;
that such system or property has been installed in any street or public
places without complying with the requirements of this franchise;
or that the franchise shall have been terminated, canceled or expired
for any reason, the company, upon notice, shall promptly remove from
the streets or public places all such property and poles of such system
other than any which the Borough may permit to be abandoned in such
place and shall also remove house distribution cables and connections.
In the event of such removal, the company shall promptly restore the
street or other areas from which such property has been removed to
a condition satisfactory to the Borough.
B.
Upon termination of service to any subscriber, the company shall
promptly remove all of its facilities and equipment from the premises
of such subscriber upon his request.
The company shall abide by all applicable ordinances of the
Borough relating to street and sidewalk work and shall make application
accompanied by the required fees for permits to perform any and all
such work before commencing same. Upon failure of the company to complete
any work required by law or by the provisions of this ordinance to
be done in any street within the time prescribed, and to the satisfaction
of the Borough, the Borough may cause such work to be done, and the
company shall pay to the Borough the cost thereof in the itemized
amounts reported by the Borough to the company within 30 days after
receipt of such itemized report.
The company shall not, as to rates, charges, service, facilities,
rules, regulations or in any other respect, make or grant any preference
or advantage to any person, nor subject any person to any prejudice
or disadvantage.
A.
The right given the company shall not be assignable without the prior
written approval of the Borough, which approval shall not be unreasonably
withheld.
B.
Any assignment attempted by the company in the absence of such consent
shall be ineffective, and the right given hereby shall thereby be
rendered null and void; provided, however, that the company may assign
this franchise and contract and its right hereunder without such consent
to a subsidiary or affiliated corporation owned, controlled or managed
by the company, but the company shall remain liable for the performance
of its obligations hereunder, notwithstanding any such assignment.
Copies of all petitions, applications and communications submitted
by the company to the Federal Communications Commission, Securities
and Exchange Commission, or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matters
affecting CATV operations authorized pursuant to this franchise, shall
be made available to the Borough if requested.
A.
The right is hereby reserved to the Council to adopt, in addition
to the provisions contained herein and in existing applicable ordinances,
such additional regulations as it shall find necessary in the exercise
of the police power.
B.
The Borough shall have the right to inspect the books, records, maps,
plans and other like materials of the company at any time during normal
business hours.
C.
The Borough shall have the right, during the term of this franchise,
to install and maintain free of charge upon the poles of the company
any wire and pole fixtures necessary for a police alarm system or
lighting fixture on the condition that such wire and pole fixtures
do not interfere with the CATV operation of the company.
[Amended 1-13-1983 by Ord. No. 423, approved 1-14-1983]
Beginning January 15, 1983, the company's charge for installation
for a single residential television cable connection shall not exceed
$25, and the charge for cable service for a single residential television
cable shall not exceed $7.75 per month. The charge for additional
installation in the same residence shall not exceed $10 per additional
installation. The charge for cable service for such additional connection
in the same residence shall not exceed $3 per month per additional
connection. The company shall have the option to require a deposit
for each set commander provided to the subscriber. Each apartment
unit within an apartment building shall be considered a separate residential
dwelling and charged accordingly. Hereafter, the company may, without
prior approval or consent of the Borough, raise its basic service
and/or installation rate, but not more than once per year, nor shall
any rate increase exceed the rate established by the consumer price
index (CPI) for the years between rate increases.
[Amended 4-13-1978 by Ord. No. 382, approved 4-17-1978; 1-13-1983 by Ord. No.
423, approved 1-14-1983; 6-10-1993 by Ord. No. 478, approved 6-10-1993]
A.
For the use of the streets and other facilities of the Borough of
Colwyn for the operation of the CATV system, and for the municipal
supervision thereof, the company shall pay to the Borough annually
during the additional fifteen-year term that amount of money which
is equal to 5% of the gross cable revenue received by the company
from its operation under this franchise. "Gross cable revenue" includes
all revenue received by the company with the exception of revenues
derived from advertising or any taxes on services furnished by the
company imposed directly on any subscriber by any state, city or other
governmental unit and collected by the company for such governmental
unit.
B.
The company shall file with the Borough of Colwyn within 90 days
after the expiration of any fiscal year of the company during the
term of this franchise a gross cable revenue report, as that term
is defined hereinabove, certified by a company officer, showing in
appropriate detail the gross cable revenue as defined herein, of the
company, its successors or assigns, during the preceding fiscal year.
It shall be the duty of the company to pay to the Borough of Colwyn
within 15 days after the time for filing such statements the specified
sum due for the fiscal year covered by such statement. The Tax Collector
of the Borough of Colwyn, or his authorized agent or other authorized
representative of the Borough of Colwyn, shall have the authority
to examine the books and records of the company to verify the accuracy
of the payments made hereunder.
C.
The company is in the process of renewing its franchises in the various
municipalities in the County of Delaware. Should any other municipality
in the County of Delaware during the franchise renewal process receive
a better fee package in any franchising agreement than that set forth
in § A148-17A above, the Borough of Colwyn shall automatically
be entitled to receive, and the company shall be obligated to pay,
the higher fee upon adoption by the Borough of Colwyn of an ordinance
with the higher fee set forth therein.
The company agrees not to oppose intervention by the Borough
in any suit or proceeding to which the company is a party and which
may have a substantial adverse effect on the company's operations
with the Borough.
The company shall comply with the present and future rules and
regulations of the Federal Communications Commission in connection
with and relating to the operation of its system and shall provide
a minimum service offering as follows:
A.
Channel capacity. The company shall construct a system with a minimum
channel capacity of 20 television channels and shall maintain a plant
having a technical capacity for non-voice-return communications.
B.
Signals to be carried. The company shall carry on its system the
signals of all stations significantly viewed in the Borough of Colwyn,
Delaware County, and the signals of no less than two distant independent
commercial stations, as well as the signals of such distant educational
stations as may be feasible and permitted under the rules and regulations
of the Federal Communications Commission.
C.
Access channels. The company shall maintain all access channels as
required by the Federal Communications Commission. As a minimum, however,
unless prohibited by law, the company shall provide public, governmental
and educational channels to the Borough to be shared by others.
D.
The company shall not engage in the sale or rental of television
or radio receivers, the furnishing of television or radio receiver
repair service or the solicitation or referral to particular persons
or classes of persons for such sale, rental or service. The facilities
of the company shall not be constructed or operated so as to necessitate
the use of a receiver of a unique type for optimum reception of signals.
However, nothing contained herein shall be interpreted to prohibit
the use of converters or descramblers on the CATV system.
E.
Program origination. The grantee shall conduct program origination
cable casting as required by the Federal Communications Commission.
A.
The performance by the company hereunder is subject to the limitations,
restrictions or requirements now existing or which may henceforth
be imposed by law, rules or order of the Federal Communications Commission
or any other government, board, commission or authority of any kind.
B.
Should the Federal Communications Commission modify or amend the
provisions of Section 76.31 of its rules and regulations entitled
"Franchise Standards," such modifications or amendments shall be incorporated
into this franchise within one year of the adoption of the modification
or amendment, or at the time of the renewal at the expiration of the
franchise pursuant to the terms and provisions hereof.
The Borough shall have the right to rescind or revoke the rights
herein granted upon any substantial violation by the company of any
of the obligations and requirements contained herein after written
notice by the Borough to the company in continuation of such violation,
failure or default.
A.
Such written notice to the company shall specify the manner in which
the company is in violation, failure or default with respect to the
franchise.
B.
The notice given by the Borough shall give the company a specified,
reasonable amount of time within which to correct the violation, failure
or default, but in no event shall the time period be less than 30
days from the date of receipt of the notice to the company.
If any section, subsection, sentence, clause, phrase or portion
of this ordinance is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portions hereof.
The Borough and the executive officers of said Borough, and
the departments and bureaus of the Borough, shall issue to the company
in the name of the Borough all permits necessary or convenient to
evidence the grant of the franchise herein and to implement the provisions
of this ordinance.
The company shall make application to the Borough and pay all
fees for any and all street work permits as required by Borough ordinances.
The company shall supply the Borough annually with a letter
signed by the president of the company certifying compliance with
the Federal Communications Commission regulations and with this ordinance.
All ordinances or parts of ordinances conflicting with the provisions
of this ordinance are hereby repealed to the extent of such conflict.
