[HISTORY: Adopted by the Borough Council of the Borough of
Tyrone 6-8-1987 by Ord. No. 931. Amendments noted where applicable.]
In consideration of the faithful performance of the conditions,
restrictions and reservations hereinafter specified, a franchise is
hereby granted to SBC Cable of Pa. Limited Partnership, hereinafter
called the "grantee," to construct, reconstruct, operate and maintain
a cable television system in, under, over, along, across and upon
the streets, sidewalks, alleys, bridges and other public places in
the limits of the Borough of Tyrone, Pennsylvania, hereinafter called
the "Borough," and subsequent additions thereto in accordance with
the laws and regulations of the United States of America and the State
of Pennsylvania and the ordinances and regulations of the Borough
of Tyrone.
For the purpose of this franchise, the following terms, phrases,
words and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present
tense shall include the future; words in the plural include the singular;
and words in the singular include the plural; and the use of any gender
shall be applicable to all genders whenever the sense requires. The
word "shall" is mandatory, and "may" is permissive. Words not defined
shall be given their common and ordinary meanings.
Any service tier which includes the retransmission of local
television broadcast signals.
Both the Borough of Tyrone, Pennsylvania, in its present
incorporated from or in any later reorganized, consolidated, enlarged
or unincorporated form and its duly authorized officials or agents
acting on its behalf.
The Cable Communications Policy Act of 1984.
An electronic device which permits the subscriber to view
channels that the cable system is capable of delivering to the subscriber.
The present governing body of the Borough or any future board
constituting the legislative body of the Borough.
The Federal Communications Commission.
Moneys required to be paid to the Borough by the grantee
for the right and privilege to operate a cable television system in
the Borough and which are allowable by the FCC or any other federal
or state statute or regulation.
SBC Cable of Pa. Limited Partnership, the recipient of the
franchise rights granted hereunder.
Any and all revenues derived directly or indirectly by the
grantee, its affiliates or subsidiaries from the operation of a cable
television system in the Borough, including but not limited to revenue
from basic subscriber service, pay television service, tier service,
per-program charges, advertising revenues, multiple outlet charges,
installation charges, leased channel charges and charges of any character
charged, paid or in any manner received for the operation of the cable
system.
Channel capacity designated for public, educational or governmental
use and facilities and equipment for the use of such channel capacity.
The request for proposal attached to this franchise and marked
Attachment D.[1]
The Commonwealth of Pennsylvania or a political subdivision
or agency thereof.
Any person, firm or corporation or any entity receiving for
any purpose the transmission of television service of the grantee.
[1]
Editor's Note: This attachment is on file in the Borough
offices.
The right to occupy and use said streets, alleys and sidewalks
for the purpose herein set forth shall not be exclusive, and the Borough
reserves the right to grant a similar use of the streets, alleys and
sidewalks to any person, company or corporation or any other entity
at any time during the period of this franchise.
In accepting this franchise, the grantee acknowledges that its
rights hereunder are subject to the lawful exercise of the police
power of the Borough to adopt and enforce general ordinances necessary
to the safety and welfare of the public, and it agrees to comply with
all applicable general laws now in effect or later enacted by the
Borough pursuant to such power.
It shall be unlawful for any person to own or operate a cable
television system in the Borough of Tyrone utilizing public rights-of-way
except by a franchise granting such right from the Borough of Tyrone.
The failure of the Borough at any time to require performance
by the grantee of any provision hereof shall in no way affect the
right of the Borough hereafter to enforce the same; nor, except as
provided in the Cable Act, shall the waiver of the Borough of any
breach of any provision hereof be taken or held to be a waiver of
any succeeding breach of such provision or a waiver of the provision
thereof.
This franchise shall be in force and effect from July 1, 1987,
and shall extend for a period of nine years to June 30, 1996.
The grantee shall pay to the Borough a sum of money sufficient
to reimburse it for all publication expenses incurred by it in connection
with the granting of this franchise within 30 days after a written
statement from the Borough of such expenses. Such sum shall not exceed
$150.
On the effective date of this franchise ordinance, the grantee
agrees to pay a grant fee to the Borough in the sum of $6,000, which
reflects the refranchising costs incurred by the Borough and shall
be used for defraying the cost of preparation of proposal documents,
legal fees and other costs incurred by the Borough in its study, evaluation
and examination of the grantee's qualifications in granting this
franchise renewal. The grantee shall exercise no rights under this
franchise until such payment is made. It is further understood and
agreed that this payment is in addition to the franchise fee and other
fees herein and shall not be passed through to subscribers.
This franchise is for the present territorial limits of the
Borough of Tyrone and any areas annexed thereto during the term of
this franchise. Service rendered by the grantee shall be made available
to all inhabitants of the Borough who may desire such service. The
grantee shall not be required to make a standard aerial drop of more
than 150 feet of cable from its existing distribution lines without
additional charge. Failure to provide Borough-wide service shall constitute
a material breach of this franchise and shall subject the franchise
to termination.
The grantee shall extend service to any area annexed to the
Borough during the life of this franchise where the density is at
least 30 housing units per strand mile of overhead cable. Such service
shall be initiated for new customers in any annexed area within nine
months of the application of said customer.
Cable television services shall not be denied to any groups
of potential residential cable subscribers because of the income of
the residents of the local area in which the group resides.
A.
If the grantee desires renewal of this franchise, it shall notify
the Borough not less than 30 months prior to the expiration of this
franchise and formally request the commencement of proceedings to
determine if renewal will be granted. Such request shall be accompanied
by a nonrefundable application fee of $2,000. Upon receipt of such
request, the Borough shall establish a date on which the grantee is
to file its renewal proposal and the form of the information therein.
Following the filing of the proposal, the Borough will commence public
proceedings consistent with the then-applicable requirements of the
Cable Act to determine whether said renewal shall be granted.
B.
The public proceeding, at which interested parties may comment, will
be for the purpose of determining whether the grantee's franchise
should be renewed, considering any applicable or allowable criteria.
Based on the record of this proceeding and the reevaluation sessions,
the Council will issue a written decision granting or denying renewal.
Any franchise granted under this ordinance shall be a privilege to be held in trust by the grantee and is nonassignable. It cannot, in any event, be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or voluntary sale, merger, consolidation or otherwise, without the prior consent of the council as expressed by resolution and then only under such conditions as described in §§ A210-15, A210-16, A210-17 and A210-18 of this ordinance.
A.
No transfer of effective ownership or control of the cable system
shall take place, whether by forced or voluntary sale, lease, mortgage,
assignment, encumbrance or any other form of disposition, without
prior notice to and approval by the Borough Council. The Council shall
receive an application for transfer at least 60 days prior to the
proposed transfer, and the notice shall include full particulars of
the proposed transfer. Sixty days following receipt of an application
for transfer and following a properly noticed public hearing, of which
the grantee and the proposed assignee(s) or transferee(s) shall be
given 10 days' written notice and at which they shall be entitled
to present evidence, the Council shall act to approve or disapprove,
by resolution, the proposed transaction stating therein the basis
for its decision. The sixty-day period may be extended by the Council,
if necessary, to include at least two regularly scheduled Council
meetings. If the Council fails to act within the sixty-day period
or any extension thereof, such transfer shall be deemed approved.
Council approval or disapproval of the requested transfer shall be
based on a determination of whether or not the proposed transferee(s)
possesses the character, legal, financial and technical qualifications
to operate a cable system and whether the quality of service to be
expected from the proposed transferee(s) would be satisfactory to
meet the needs of the subscribers. The following conditions must be
met prior to the grantee's application for approval of transfer:
(1)
The grantee's franchise fees or any pro rata portion thereof
must be paid in full.
(2)
All personal property taxes and other assessments levied by
federal, state or local government must be paid in full or suitable
provisions made for securing the same.
(3)
All violations of this ordinance must be corrected or waived
by Council resolution.
(4)
The grantee shall pay to the Borough a nonrefundable transfer
fee in the amount of $100 to be submitted with the application for
approval of transfer.
B.
For the purpose of this section, a "transfer of effective ownership
or control" shall be taken to mean and include the acquisition, within
any consecutive period of 36 months, of not more than 10% interest
in the grantee's voting stock, franchise, plant, equipment or
other property used in the conduct of the business, but such definition
shall not include:
(1)
A pledge or hypothecation or mortgage or similar instrument
transferring conditional ownership in all or part of the system's
assets to a lender or creditor in the ordinary course of business
so long as the lender does not thereby acquire the right to control
the system's operations, but no such transfer or conditional
title can be made absolute without prior approval of the Council;
(2)
The disposition of facilities or equipment no longer required
in the conduct of business; or
(3)
Transfer of limited partnership interests in instances where
the grantee is a limited partnership, provided that there is no change
of or transfer of control in the general partner or general partnership
interests.
A.
The Borough shall have the right and first option to acquire ownership
of the cable system or to effect a transfer of ownership of the system
to another person if the grantee does not seek renewal and if the
system is sold during the last 36 months of the franchise. Such acquisition
or transfer shall be at fair market value, determined on the basis
of the cable system valued as a going concern, but with no value allocated
to the franchise itself.
B.
The Borough shall have the right and first option to acquire ownership
of the cable system or to effect a transfer of ownership of the system
to another person if a renewal is denied. Such acquisition or transfer
shall be at fair market value, determined on the basis of the cable
system valued as a going concern, but with no value allocated to the
franchise itself.
C.
The Borough shall have the right and first option to acquire ownership
of the cable system or to effect a transfer of ownership of the system
to another person if the franchise is revoked for cause. Such acquisition
or transfer shall be at an equitable price.
If the franchise is revoked for cause and if the Borough elects not to exercise its option to purchase, the grantee shall have the right, within 120 days thereafter, to obtain a purchaser acceptable to the Council as a grantee and to sell and transfer the same and all of the system's assets to such purchaser for an amount not to exceed fair market value. The Borough reserves the right to reject any proposed grantee which it feels is unqualified and to amend any and all of the franchise terms as it finds appropriate for such new franchise. The grantee shall first meet the requirements set forth in § A210-15A(1) through (4).
The grantee shall be obligated during the entire term of this
franchise to provide continuous service to all subscribers for payment
of the established fee.
A.
The obligation of the grantee to provide such service to subscribers
shall not be limited, altered or modified by any action of the grantee
to overbuild, rebuild, modify or sell the system.
B.
Upon expiration of this franchise or if a renewal is denied or if
the franchise is revoked for cause, the grantee may be required by
the Borough as part of this franchise, in addition to any other remedies
provided herein or by law, to continue to operate the system for a
period not to exceed 12 months or until such time as a permanent operator
is selected, whichever is shorter.
A.
In addition to all other rights and powers retained by the Borough
under this franchise, the Borough reserves the right to revoke and
terminate the franchise and all the rights and privileges of the grantee
granted hereunder in the event of a substantial breach of its terms
and conditions. A substantial breach shall include, but shall not
be limited to:
(1)
An uncured violation of any material breach of the franchise
or any rule, regulation or determination of the Borough made pursuant
thereto.
(2)
An attempt to evade any material provision of the franchise
or the practice of any fraud or deceit upon the cable system subscribers
and customers or upon the Borough.
(3)
The failure to provide the broad categories of programming or
other services specified in this franchise.
(4)
The material misrepresentation of facts in the RFP or during
negotiations relating to this franchise.
(5)
The failure to provide or maintain in full force and effect
the liability and indemnification coverage or the performance bond
as required herein.
(6)
The grantee becomes insolvent, unable or unwilling to pay its
debts (unless such debt is to a third party and is contested in good
faith) or is adjudged bankrupt.
(7)
If the FCC finds after notice and hearing that the grantee has
willfully and repeatedly without good cause failed to comply with
the equal employment requirement of the Cable Act.
B.
The Borough shall make written demand that the grantee comply with
any such provision, rule, order or determination under or pursuant
to the franchise. If the violation by the grantee continues for a
period of 30 days following such written demand without written proof
that the corrective action has been taken or is being actively and
expeditiously pursued to the satisfaction of the Borough, the Borough
may consider terminating the franchise; provided, however, that the
grantee must be given an opportunity to appear before the Borough
Council to present its arguments. Should the Borough determine, following
the hearing, that the violation was the fault of the grantee and within
the grantee's control, the Borough may, by resolution, declare
that the franchise be revoked and terminated.
Upon expiration of the franchise or if the franchise renewal
is denied or if the franchise is revoked for cause and if the system
has not been sold in place pursuant to the provisions of this franchise,
the grantee shall, within a period of six months and at its own expense,
remove all portions of its system from all the public ways and restore
such public ways to a condition satisfactory to the Borough. If the
grantee fails to remove any portion of its facilities within the time
prescribed and to the satisfaction of the Borough, the Borough, at
its option, may perform the work or cause the work to be performed,
and the grantee shall pay to the Borough the cost thereof within 30
days after receipt of an itemized account from the Borough for such
work.
The grantee shall provide, upon the effective date of this franchise
and at the request of the subscriber, a captioning decoding device
to be attached to the subscribers set for the reception of basic service
by hearing impaired individuals. Such device shall be provided at
cost. There shall be no installation charge for units purchased from
the grantee. Subscribers shall be permitted to purchase and install
captioning decoding devices of their own without payment of any charge
or fee to the grantee.
Upon request of any subscriber, the grantee shall make available
for sale a lockout device which will enable the subscriber to control
children's viewing of programming which is obscene or indecent
and during the hours the subscriber desires. Lock boxes shall be of
such quality so as to ensure, as far as practicable, that there will
be no interference on adjacent channels or any other technical problems
associated with the use thereof.
The grantee agrees to provide installation and basic service
free of charge upon request to the following buildings:
In case of an emergency or disaster, the grantee, on request
of the Borough, shall make its facilities available for emergency
use during the emergency or disaster period at no cost to the Borough
except to the extent of any costs incurred by the grantee from such
use.
The grantee shall provide standby power generating capacity
rated for at least three hours duration during normal power outages.
The parties agree and understand that the present cable television
system within the Borough consists of a twenty-four-channel system.
All 24 channels are presently activated, with 12 channels allocated
for basic service and 12 channels designated for other optional pay
services. Attachment A, attached and incorporated herein,[1] describes the composition of services which the grantee
provides on the date of this franchise. In accordance with the Cable
Act, the grantee shall, for the term of this franchise, maintain the
mix, quality and level of service for the broad categories of video
programming as set forth in Attachment A.
[1]
Editor's Note: This attachment is on file in the Borough
offices.
Cable services that are obscene by community standards shall
not be presented on the cable system.
Services offered by the grantee shall not include the repairing,
servicing, selling, leasing or renting of television sets, nor shall
the grantee recommend service by any other persons, except for such
items as may be directly related to the cable installation and/or
connection.
A.
Channel capacity, facilities and equipment. The grantee shall designate
one clear channel with no reception problems for a future public access
channel. The channel shall be for the combined use of public, educational
and governmental access and shall be provided as part of basic service.
The grantee agrees to make its three-fourths-inch Sony videotape player
or like equipment available for access use at its head end facility.
B.
Channel use before activation. Until such time as the public access
channel is required by the Council, the grantee shall have unrestricted
use of the channel for provision of other cable services, provided
that the grantee shall not enter into any agreement, lease or contract
for the use of the channel that would prevent its use for public access.
In no event is this channel to remain dark.
C.
Channel activation procedure. The public access channel shall be
activated at the request of the Council and upon 90 days' notice
to the grantee. The Council may activate the channel for full-time
use or for part-time use by specifying the number of hours to be made
available. Commencing at the request of the Council and continuing
until the activation of the channel for public access, the grantee
agrees that notices will be aired on the automated channel of the
system informing viewers of the availability of the channel for public
access use. These notices shall be broadcast not less than once daily
between the hours of 8:00 a.m. and 11:00 p.m.
D.
Reservations. The Council reserves the right, now or at any other
later time, to appoint a Cable Access Committee of interested citizens
for the purpose of promoting programming of the public access channel.
This committee will include one nonvoting representative of the grantee.
The duties of the Committee will include:
E.
Editorial control. The grantee shall not exercise any editorial control
over any public, educational or governmental use of the channel capacity
provided by this section.
The grantee shall at all times employ ordinary care and shall
install and maintain in use commonly accepted methods and devices
preventing failure and accidents which are likely to cause damage,
injuries or nuisances to the public. The grantee shall install and
maintain its cables, fixtures and other equipment in such manner that
they will not interfere with any installations of the Borough or of
any public utility serving the Borough. All public ways shall be restored,
at the grantee's expense, to their former condition as soon as
practicable after the completion of any work. The grantee shall maintain
a force of sufficient employees at all times to provide safe, adequate
and prompt service to its facilities.
The grantee shall install, operate and maintain its system in
a manner consistent with all applicable laws, ordinances, construction
standards, governmental requirements and, particularly, FCC technical
standards, which standards are incorporated herein. The cable system
shall, at a minimum, conform to the technical standards contained
in the FCC rules and any recommendations which may supersede such
rules; provided, however, that if the FCC discontinues promulgation
or enforcement of such technical standards, such standards shall remain
in force and effect for the life of this franchise.
The grantee shall be permitted to place its cables, wires and
other equipment overhead when local or state law permits overhead
construction and other like facilities are overhead. The grantee shall
place its cables, wires and other equipment underground when local
or state law requires underground placement and where other like facilities
are underground.
The grantee is prohibited from entering into any pole agreement
with any person, firm or other corporation which precludes the use
of such poles by any other cable operator. Copies of all pole agreements
shall be filed in the office of the Borough Manager.
The grantee shall, without expense to the Borough, relocate,
change or remove its facilities to accommodate such public works as
the Borough, in its judgment, shall require. The grantee shall, at
the request of any person holding a permit issued by the Borough,
temporarily raise, lower or remove its wires to permit the improvement
of property. The expense of such change shall be paid by the person
requesting the same, and the grantee shall have the authority to require
payment in advance. The grantee shall be given no fewer than 48 hours
of advance notice to arrange such temporary wire change.
Twenty-four months after the effective date of this franchise,
and every 24 months thereafter for the term of this franchise, the
grantee shall provide to the Council a written report detailing the
physical and technical condition of the system. The grantee has demonstrated
in its RFP, marked Attachment D,[1] attached and incorporated herein, that no rebuild or changes
to the system are required or anticipated at this time. Therefore,
any construction, rebuild, upgrade, overbuild, expansion or substantial
change of any nature to the system during the term of this franchise
shall be conducted in the following manner:
A.
At least 90 days prior to the commencement of any construction, rebuild,
upgrade, overbuild, expansion or substantial change of any nature
to the system requiring a capital expenditure exceeding $100,00, the
grantee shall submit to the Council for approval a detailed description
of the proposed changes or alterations, cost of the improvement, evidence
of satisfactory construction insurance, construction schedules, timetables
for completion and such other information as the Council may request.
The Council shall have the right to request additional information
within 30 days of the first submission date.
B.
Upon receipt of all information, the Council shall, within 30 days
or at least two regular Council meetings (whichever is greater), act
to approve or disapprove the proposed changes. If no action is taken
during the specified time, the proposed changes shall be deemed approved.
Council consideration to approve or disapprove shall include, but
not be limited to, whether such change is reasonable to meet the cable-related
needs of the community, taking into account the cost of providing
such change. Such approval shall not be unreasonably withheld.
C.
In the event that the system is rebuilt during the term of this franchise,
the grantee shall extend increased service to all subscribers of the
Borough simultaneously or within a reasonable time, such time not
to exceed 30 days.
[1]
Editor's Note: This attachment is on file in the Borough
offices.
The Borough shall have the right to supervise or inspect all
work performed by the grantee or its agents upon the public ways to
ensure compliance with this franchise. In the event that such inspection
reveals that the grantee has failed, in the Borough's judgment,
to fulfill its obligations, the Borough shall notify the grantee,
in writing, of its deficiencies. Absent commencement of corrective
action by the grantee within five business days of receipt of notification,
the Borough may undertake the necessary repairs or restorations at
the grantee's sole expense.
The grantee shall have the right to trim trees in and overhanging
the public ways, in a workmanlike manner, so as to prevent its facilities
from abrasive contact. The grantee shall obtain permission of the
owner of a privately owned tree or other vegetation before it trims
or prunes the same.
Upon the date of this franchise, the grantee's rates for
subscriber services rendered to normal residential customers are as
shown in Attachment B, attached and made a part of this franchise.[1]
[1]
Editor's Note: This attachment is on file in the Borough
offices.
The grantee shall administer any and all rates and charges so
as not to give preference to or discriminate among customers of basic
cable service. Nothing in the foregoing shall be deemed to prevent
the grantee from establishing special reduced rates for senior citizens
or for subscribers who pay promptly. Bulk customers shall be billed
at the discretion of the grantee so long as its rates are not arbitrary
and capricious. Bulk rates shall require a minimum of six or more
units at the same building or location, and all units must be activated.
The grantee shall have the right to regulate rates for the provision
of cable service subject to Section 623 of the Cable Act, provided
that:
A.
The Borough reserves the right, at any time during the term of this
franchise, to petition the FCC for the right to regulate basic subscriber
rates by establishing that effective competition does not exist in
accordance with FCC Regulations, Section 76.33.
B.
The Borough shall regulate any rate to any extent now or later permissible
by law.
The grantee shall, to the extent now feasible or upon upgrade
of the system, install equipment which permits the full utilization
of cable-ready television receivers by subscribers to avoid converter
usage where possible. The grantee shall permit subscribers to purchase
compatible converters of their own and use them for cable reception
without payment of any charge or security fee to the grantee; provided,
however, that nothing herein shall permit a subscriber to obtain services
over the cable system without proper authorization from the grantee
and payment of the appropriate fee therefor.
Rate increases shall be nondiscriminatory and in accordance
with the Cable Act. No increase in rates charged to subscribers shall
be made except as provided under federal law or, if permitted, as
authorized by the Council after an appropriate public proceeding affording
interested parties the opportunity to comment and present testimony.
A.
In consideration for the franchise granted herein and for the right and privilege of using the streets and public ways in the Borough of Tyrone, the grantee shall pay to the Borough annually a franchise fee in an amount equal to 5% of the grantee's annual gross revenues, as defined in § A210-2, and subject to the following conditions:
(1)
Payments due under this section shall be payable, without notice,
on a semiannual basis. Payment shall be made not later than July 31
for the period from January 1 to June 30 and on January 31 for the
period from July 1 to December 31.
(2)
Each such payment shall be accompanied by a completed franchise
fee payment form, Attachment C,[1] attached hereto and made a part of this franchise, and
shall be certified correct by a cable comptroller of the grantee.
By March 31 of each year, the grantee shall file a completed franchise
fee payment form with the Borough Manager showing the total gross
revenues for the previous calendar year. If that report demonstrates
that the franchise fee liability for the calendar year based on actual
gross revenues differed from the fees actually paid by the grantee,
an appropriate adjustment shall be made within 30 days following the
filing of the report.
[1]
Editor's Note: This attachment is on file in the Borough
offices.
(3)
No acceptance of any payment shall be construed as an accord
that the amount paid is in fact correct. All amounts shall be subject
to recomputation by the Council or audit by an independent auditor
of the Borough's choice and at the Borough's expense for
one year.
(4)
If the audit determines that the franchise fee paid differs
from that which should have been paid by 2% or more, then the audit
expense shall be paid by the grantee.
(5)
In the event that recomputation or audit results in additional
fees owed, such amount shall be subject to an interest charge of 10%
per annum.
(6)
In addition to the foregoing, the Borough shall have access
at all reasonable hours to all the grantee's statistical, income
and service records required to be kept hereunder, insofar as such
records concern franchise fee payments to the Borough.
(7)
In billing subscribers for cable communication services, the
grantee shall not designate the franchise fee as a tax.
(8)
The grantee shall pass through to subscribers any decrease in
the franchise fee.
(9)
Nothing in this section shall be interpreted as relieving the
grantee of its liability for any other properly applicable taxes.
B.
If during the term of this franchise any court, agency or other authority of competent jurisdiction takes any action or makes any declaration that adversely affects the amount of the franchise fee set forth in this section, the Borough and the grantee shall enter into negotiations to amend this franchise to make the Borough whole in a manner consistent with said action or declaration by restoring the Borough to a position equivalent to that which it held prior to said action or declaration to the extent allowed by law. In such event, Subsection A(8) above may not apply.
The grantee shall comply with the provisions of the Cable Act
regarding:
A.
Subscriber privacy rights (Section 631).
B.
Nondiscrimination against subscribers [Section 621(3)].
C.
Equal employment opportunity [Section 634, as described in § A210-19A(7) of this franchise].
The grantee shall render efficient service, make repairs promptly
and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
The grantee shall maintain a business office in the Borough
which shall be open during the usual business hours, have a publicly
listed, toll-free telephone and be so operated that complaints and
requests for repairs and adjustments may be received on a twenty-four-hour
basis.
The grantee shall maintain a repair and maintenance crew capable
of responding and resolving subscriber complaints and requests for
service within 48 hours after receipt. However, in case of complete
loss of service, the grantee shall repair said loss of service within
24 hours if technically possible. No charge shall be made for this
service; provided, however, that a charge may be made if the service
call is the result of repeated abuse of the service or the equipment
or for subscriber-caused damage.
The grantee may bill for more than one month in advance but
may not require subscribers to pay for service more than one month
in advance, and any billing of more than one month in advance must
advise the subscriber, in prominent writing on the bill, of his option
to pay only one month in advance.
If any subscriber fails to pay a properly due monthly subscriber
fee or any other properly due fee, the grantee may disconnect the
subscriber's service, provided that such disconnection shall
not be affected until 45 days after the due date and shall include
10 days' written notice of the intent to disconnect properly
mailed to the subscriber in question. Upon payment of the delinquent
amount, reconnection fee and the first months' service charge,
service shall be restored.
Upon termination of service to any subscriber, the grantee shall
promptly remove its facilities and equipment from the premises of
such subscriber upon his request.
The grantee shall maintain a maintenance service log indicating
the date and time that subscriber complaints and requests for repair
service are received and resolved and the nature of the complaint
and resolution. This log shall be available for reasonable inspection
by the Borough and kept for the life of this franchise.
If any subscriber terminates regular subscriber service prior
to the end of a prepaid period, all unearned service fees in excess
of $2, as of the date the grantee receives notice of said termination,
shall be refunded to the subscriber promptly, such time not to exceed
45 days after termination.
At the time that the grantee enters into an agreement to provide
service to a subscriber, the grantee shall provide the subscriber
a written statement that clearly sets forth the following:
A.
A complete schedule of rates, fees, charges and terms and conditions
of service currently applicable.
B.
A brief written explanation of all services offered, including but
not limited to basic service, tier service, parental lockout devices,
hearing impaired devices, proper use of the converter and other cable-related
equipment and installation procedures.
C.
A complete statement of the subscriber's right to privacy in
conformance with 47 U.S.C. § 631.
D.
Information concerning the procedures for making inquiries, complaints
or repair requests, including the twenty-four-hour telephone number.
E.
The address and telephone number of the Borough officer responsible
for the administration of the franchise.
A.
The grantee shall, at its sole cost and expense, fully indemnify,
defend and hold harmless the Borough, its officers, boards and commissions
and Borough employees against any and all claims, suits, actions,
liability and judgment for damages, including but not limited to expenses
for reasonable legal fees and disbursements and liabilities:
(1)
To persons or property in any way arising out of or through
the acts or omissions of the grantee, its servants, agents or employees
or to which the grantee's negligence shall in any way contribute
with respect to the construction, maintenance or operation of the
grantee's system under this franchise.
(2)
From any claim for invasion of the right of privacy, for defamation
of any person, firm or corporation or the violation or infringement
of any copyright, trademark, trade name, service mark or patent or
of any other property right of any firm or corporation arising from
the construction, maintenance or operation of the grantee's system
(excluding claims arising out of or relating to Borough programming).
(3)
Arising out of the grantee's failure to comply with the
provisions of any federal, state or local statute, ordinance or regulation
applicable to the grantee in its business hereunder.
B.
The foregoing indemnity is conditioned upon the following: The Borough
shall give the grantee prompt notice of the making of any claims or
the commencement of any action, suit or other proceeding covered by
the provisions of this section. Nothing herein shall be deemed to
prevent the Borough from cooperating with the grantee and participating
in the defense of any litigation by its own counsel at its sole cost
and expense.
A.
The grantee shall obtain, effective from the date of execution of
this franchise, and shall keep in force and effect during the entire
term of this agreement a policy of comprehensive general liability
insurance as shall be approved by the Borough Solicitor and the Borough
Manager. Such policy of insurance shall name the Borough, its officers,
employees and agents as additional insureds and shall protect the
Borough and all persons against liability for loss or damage for personal
injury, death and property damage with respect to the construction,
maintenance or operation of the grantee's system under this franchise
and shall evidence minimum liability limits as follows: combined single
limit for bodily injury and property damage of $3,000,000 for each
occurrence and $3,000,000 aggregate.
B.
No policy of insurance required under this franchise shall be replaced,
renewed, canceled or materially changed or altered in any way, except
upon 30 days' written notice to the Borough of Tyrone prior to
the date said material alteration or cancellation shall become effective.
All required insurance premiums shall be at the expense of the grantee.
A certificate of insurance of all policies of insurance required by
the franchise and all renewals thereof and written evidence of payment
of required premiums shall be filed with the Borough Manager within
10 days of the granting of the franchise and maintained during the
life and term of this franchise.
The grantee shall maintain and, by its acceptance of this franchise,
specifically agrees that it will maintain, throughout the term of
this franchise, a faithful performance bond running to the Borough
of Tyrone and approved by the Borough Solicitor in the penal sum of
$12,500, conditioned that the grantee shall well and truly observe,
fulfill and perform each term and condition of this franchise and
that, in case of any breach of condition, the amount thereof shall
be recoverable from the principal and/or sureties by the Borough of
Tyrone for all damages resulting from the failure of the grantee to
well and faithfully observe and perform any of the provisions of this
franchise. The bond shall contain the following endorsement: "It is
hereby understood and agreed that this bond may not be canceled nor
the intention not to renew be stated until 30 days after receipt by
the Borough Manager of Tyrone, Pennsylvania, by registered mail, of
two copies of a written notice of such intent to cancel or not renew."
A copy of said performance bond shall be filed with the Borough Manager
within 10 days of the granting of this franchise and be maintained
during the life of the franchise.
The Borough and the grantee may hold scheduled reevaluation
sessions within 30 days following the second anniversary of the effective
date of this franchise and each year thereafter during the term of
the franchise. The purpose of the sessions is to ensure that the cable
communications needs and interests of the subscribers are being met.
A.
Sessions shall be open to the public and announced at least five
days in advance. In addition to other notification, the grantee shall
notify the public of the meeting by announcement on at least one channel
of the cable system between the hours of 7:00 p.m. and 9:00 p.m. for
five consecutive days prior to the scheduled meeting.
B.
The following topics may be considered for discussion at each evaluation
session: system performance, system rebuild or upgrade, programming
offered, customer complaints, franchise compliance, pertinent judicial
and federal rulings and franchise fees. Topics may be added by either
party or by the general public.
C.
The grantee shall fully cooperate with the Borough in providing records
and reports to be used as resource and reference items at such sessions.
D.
Special reevaluation sessions may be held at any time at the request
of the grantee or the Borough and shall be held upon request of the
public by presenting a petition to the Council bearing the signatures
of 50 or more cable subscribers in the Borough and stating the topics
to be discussed.
E.
Nothing contained herein shall prevent either the grantee or the
Borough from discussion of these subjects in meetings other than the
above-described reevaluation sessions.
The grantee shall file with the office of the Borough Manager:
A.
Annually, not later than March 1 of each year, a financial statement
for the previous year, including a profit and loss statement that
encompasses all revenue for the Tyrone system, with revenues separately
stated for the Borough of Tyrone and certified correct by a senior
officer of the company.
B.
Copies of such rules, regulations, terms and conditions adopted by
the grantee for the conduct of its business.
C.
Copies of all petitions, applications, agreements, communications,
reports, letters or other documents submitted to or received from
the FCC or any other state or federal regulatory agency relating to
the grantee's operation of the cable system in the Borough. This
information shall be filed with the Borough Manager within five days
of submission or receipt as to such agency.
D.
A copy of the grantee's affirmative action policy.
E.
No later than December 31 of each year, a full schedule of subscriber
services offered and the rates charged for each. The schedule shall
include but not be limited to basic subscriber service, pay television,
leased channels, installation, multiple outlets, converter charges
and any other charges made in connection with the system. The schedule
shall be updated when any change is made in service or rates within
five working days of such change.
F.
Such other reasonable information as the Borough may request with
respect to the grantee's properties and expenses related to its
system and operations within the Borough.
The following documents shall be incorporated and made a part
of this agreement:
A.
Attachment A: Initial programming offer.
B.
Attachment B: Initial rates.
C.
Attachment C: Franchise fee payment form.
D.
Attachment D: Request for proposal (RFP).
[1]
Editor's Note: These attachments are on file in the Borough
offices.
The Borough Manager is designated as the local officer having
primary responsibility for the continuing administration of the franchise.
The Borough Manager shall have the following regulatory responsibilities:
If any section, subsection, sentence, clause, phrase or any
portion of this franchise 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 thereof.
The Borough and the grantee hereby agree that upon the taking
effect of this ordinance and franchise, all ordinances or parts of
ordinances which would otherwise be in effect be and the same are
hereby repealed.
Captions to sections throughout this franchise are intended
solely to facilitate reading and referencing and shall not affect
the meaning or interpretation of this franchise.
Whenever this franchise agreement sets forth any time for any
act to be performed by either of the parties, such time shall be deemed
to be of the essence of this agreement.
Should the Commonwealth of Pennsylvania or the FCC or the United
States Congress or any other state or federal agency require the grantee
to perform or refrain from performing any act, the performance or
nonperformance of which is inconsistent with any provisions of this
franchise, the grantee shall so notify the Borough, and the Borough
shall thereupon, if it determines that a material provision herein
is affected, have the right to seek modification of any of the provisions
herein to such extent as may be necessary to carry out the full intent
and purpose of this franchise.
The grantee acknowledges and warrants, by acceptance of the
rights, privileges and franchise granted herein, that it has carefully
read and fully comprehends the terms and conditions of the franchise
ordinance and is willing to and does accept all reasonable risks of
the meaning of the provisions, terms and conditions herein. The grantee
further acknowledges and states that it has fully studied and considered
the requirements and provisions of the franchise ordinance and finds
that the same are commercially practicable.
Within 10 working days after passage of this ordinance by the
Tyrone Borough Council awarding a franchise, the grantee shall file
with the Borough Manager its written acceptance of the franchise,
together with the bond and insurance policy and all other fees required
herein. Such acceptance and agreement shall be acknowledged by the
grantee before a notary public and signed by a senior officer of the
grantee and shall be in a form and content satisfactory to and approved
by the Borough Council. If such execution is not effectuated within
the time prescribed herein, this franchise shall be of no force and
effect.
