[Ord. 90-3, 11/12/90, § 1]
When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include
the singular number, and the words in the singular number include
the plural number.
BROADCAST SIGNAL
a television or radio signal that is transmitted over the
air to a wide geographic audience and is carried by a cable television
system off-the-air, by microwave or satellite link, or other means.
CABLE SUBSCRIBER (INCLUDING SUBSCRIBER)
any person, whether individual, business entity or institution,
who pays either monthly, yearly or special event service charges and
who lawfully receives basic cable, pay-per-view or other services
lawfully provided by the cable television system, grantee, regardless
of whether such person occupies single-family or multiple-unit dwellings,
hotels, or motels, or carries on business or other affairs in business
establishments or institutional premises.
CABLE TELEVISION SYSTEM (INCLUDING SYSTEM)
an electronic communications system using antennas, coaxial
or light-fibre cables, wires, microwave facilities or receivers, transmitters,
towers, waveguides, satellite communications devices and other electronic
means or devices designed and constructed for the purpose of providing
"cable service(s)" described as follows:
1.
BASIC CABLE SERVICESthe level of service available to subscribers at the lowest monthly rate which includes originated cable programming, if any.
2.
PAY CABLE SERVICE(S)programming of any nature which is not available to cable subscribers except upon payment of an additional monthly fee or fees, regardless of source, position or tier of service.
3.
PAY-PER-SERVICE(S)programming which cannot be received by cable subscribers without payment of a specific charge for occasional delivery of special programming events, regardless of whether special receipt devices are required. Any other kinds of signals or programming permitted by law or contract, regardless of source or nature, distribution method or method of delivery to cable subscribers or engaging in any other business or activity which employs the system and which is allowed by law.
CONVERTER
an electronic device used in the operation of the system,
either sold to subscribers or placed by grantee in dwellings, hotels,
motels, business establishments or institutional premises, which converts
electronic signals from one radio frequency to another.
FRANCHISE
the authorization granted hereunder in terms of a franchise,
right, privilege, permit, license or otherwise, which evidences the
Township's assent to the grantee's construction operation,
and maintenance a cable television system within the Township. Any
such authorization, in whatever form granted, shall not mean and include
any license or permit required for the privilege of transacting and
carrying on a business within a Township as required by other ordinances
and laws of this Township.
FRANCHISE AREA
the entire geographic area within the present boundaries
of the area under jurisdiction of the Township Supervisors, as designated
by the Township Supervisors; however, in the event that the franchisee
shall be unwilling or unable to provide said services to any specific
area or areas within the franchise areas, as designated by the Township
Supervisors, then upon that event, after appropriate notice to franchisee,
the Supervisors may permit another company to service said area.
GRANTEE - FRANCHISEE
the person, firm or corporation granted a franchise by the
Supervisors under this Part, or the lawful successor, transferee or
assignee of said person, firm or corporation.
GROSS RECEIPTS
all monthly service fees actually collected from cable subscribers
within a fiscal year by grantee for providing basic cable services
to cable subscribers in the franchise area.
PROPERTY OF GRANTEE
all real, personal, tangible or intangible property owned,
installed or used within the Township by the grantee in the conduct
of a cable television system business under the authority of the franchise
granted pursuant to this Part.
PUBLIC INTEREST
that standard which shall be applied by the Township and
Supervisors in considering renewal applications, and termination or
extension issues; namely whether (i) grantee substantially complied
with the material terms of its franchise and with applicable laws;
and (ii), the quality of grantee's service, including signal
quality, response to consumer complaints, and billing practices, but
without regard to the mix, quality, or level of cable services or
other services provided over the system, has been reasonable in light
of community needs and (iii), grantee has the financial, legal, and
technical ability to provide the services, facilities, and equipment
provided for in this Part.
PUBLIC WAY
the surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, parkway, way, lane, public way, drive, circle or other public
right-of-way, including public utility easements, dedicated utility
strips or rights-of-way, and any temporary or permanent fixtures or
improvements located thereon, now or hereafter held by the Township
in the franchise area which shall entitle the Township and the grantee
to the use thereof for the purpose of installing, operating, repairing
and maintaining the cable television system. Said word shall also
mean any easement now or hereafter held by the Township within the
franchise area for the purpose of public travel, or for utility or
public service use, and shall be now held or hereafter held by the
Township within the franchise area, which shall within their proper
use and meaning entitle the Township and the grantee to the use thereof
for the purposes of installing or transmitting grantee's cable
services over poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, compliances, attachments and other property
as may be ordinarily necessary and pertinent to the cable television
system.
RESIDENT
any person residing in the franchise area.
STATE
the State of Pennsylvania.
SUPERVISORS
the present governing body of the Township or any future
board constituting the legislative body of the Township.
TOWNSHIP
the Township of Smith in its present incorporated form or
in any later reorganized, consolidated, enlarged or reincorporated
form.
[Ord. 90-3, 11/12/90, § 2]
1. There is hereby granted by the Township to a grantee the non-exclusive
franchise to engage in the business of operating a cable television
system in the franchise area, and for the purpose to erect, install,
construct, repair, replace, reconstruct, maintain and regain in, on,
over, under, upon, across and along any public way and all extensions
thereof and additions conductors, ducts, conduits, vaults, manholes,
pedestals, amplifiers, appliances, attachments, and other property
as may be necessary and appurtenant to the cable television system;
and in addition, so to use, operate, and provide similar facilities
or properties rented or leased from other persons, including but not
limited to any public utility or similar entity permitted to do business
in the franchise area. Grantee shall be required to pay no fees or
charges, other than the franchise payment stated hereinafter, to any
person or entity for the use of public ways within the franchise area.
No cable television system shall be allowed to occupy or use the public
ways of the franchise area or be allowed to operate without a franchise.
The grantee shall at all times during the term of this franchise be
subject to all lawful exercise of the general police power by the
Township.
2. In the event the Township enters into a franchise, permit, license,
or other agreement of any kind with any other person or entity other
than the grantee, which contains terms more favorable to such person
or entity than those contained herein, this Part shall be deemed amended
as of the effective date of the other franchise, permit, license or
other agreement, so as to give the grantee the benefit of any such
more favorable terms.
[Ord. 90-3, 11/12/90, § 3]
The franchise granted by the Supervisors under this Part shall
be for an initial 15 years from the date set forth, hereinafter; provided
that the initial term may be extended pursuant to the terms and conditions
contained in § 313 and as otherwise prescribed herein.
[Ord. 90-3, 11/12/90, § 4]
1. Obligations of Grantee.
A. The grantee shall render service as required hereunder and shall
respond to complaints and make repairs as necessary. Grantee shall
assure the continuity of cable service to all cable subscribers who
are current in their payments for service, and in no event shall grantee
turn-off the system except as permitted by the terms herein.
B. The cable television system shall be operated and maintained by grantee
at all times in substantial compliance with all applicable filing,
reporting or requirements of the Federal Communication Commission
(F.C.C.) or other government agencies regulating cable television
generally.
C. The grantee's obligation to provide, repair, replace, construct,
maintain or operate cable television service, shall be excused for
any period during which such service is prevented or interrupted for
any cause beyond grantee's control, including, without limitation,
acts of God, fire, flood, earthquakes, hurricane, unavoidable casualty,
extraordinary delays in transportation, strikes, lockouts, picketing,
boycotts, embargoes, government orders or other requirements, acts
of civil or military authorities, governmental restrictions, energy
shortages, regulations or controls, war-related shortages, alien invasions,
acts or commissions of carriers, or activities or other emergency
conditions including weather conditions incompatible with good quality
workmanship or operations.
D. If available, the grantee shall provide to any cable subscriber so
requesting a parental guidance or lock-out device which shall permit
the subscriber, at his or her option and at his or her cost, to prohibit
a particular cable service during periods selected by that subscriber.
The grantee shall advise all cable subscribers regarding the availability
of this device and a charge for any such device may be imposed.
E. If not prohibited by law or regulation, at the request of the Township
Supervisors, the grantee shall provide a list of all of the names
and addresses of existing subscribers within the Township as of the
date of said request and upon failure to do so, the grantee shall
forfeit the bond referred to under this Part and, said requirement
shall be a condition pertaining to said bond. In the event that said
information may not be revealed pursuant to law or regulation, then
if otherwise permitted thereby, the grantee shall so advise the Supervisors
at the time of said request, but shall provide such information as
otherwise may be available and/or revealable pursuant to law or regulations,
such as, but not limited to, the number of subscribers, the number
of homes, the number of parties receiving services, and the amount
of connections or hook-ups.
2. Obligation of Township.
A. It being in the interest of grantee to maintain a good relationship
with the residents of the Township, the Township shall assist and
cooperate with grantee in maintaining such a relationship.
B. If it becomes legally or practically infeasible for grantee (franchisee-company)
to use certain public ways, particularly public utility easements
across private property or dedicated utility strips, then the Township
shall cooperate with grantee in obtaining the necessary authority
to cross, use or otherwise employ rights-of-way in installing and
maintaining its system, except that under no circumstances shall the
Township be required to make any monetary contribution or payment.
[Ord. 90-3, 11/12/90, § 5]
1. All transmission and distribution structures, poles, lines, and equipment
installed or erected by grantee within the Township shall be so located
as to cause a minimum of interference with the proper use the public
ways or streets and with the rights and reasonable convenience of
property owners who own property that adjoins any of said public ways.
2. In case of disturbance of damage of or to any public way or street
or the like by grantee or as a result of grantee's use of the
same, grantee shall, at its own expense, replace, restore and otherwise
repair such public way, street or the like to as good a condition
as the same existed prior to the disturbance or damage thereof.
3. Upon its receipt of reasonable advance notice, the grantee shall,
at its own expense, protect, support, temporarily disconnect, relocate
from the street or other public place, or remove from the street or
other public place any property of the grantee when lawfully required
by Township by reason of traffic conditions, public safety, street
abandonment, freeway and street construction, change or establishment
of street grade, installation of sewers, gas or water pipes, or any
other type of structures or improvements by the Township; but, grantee
shall in all cases have the right of abandonment of its property,
subject to Township ordinances, and if public funds are available
to any company using such street, easement or right-of-way of the
forgoing, such funds shall also be made available to grantee.
4. The grantee shall on the request of any person holding a building
moving permit issued by the Township, temporarily raise or lower its
wires to permit the moving of buildings, provided: (i) the expense
of such temporary raising or lowering of wires is paid by said person,
including, if required by grantee, making such payment in advance;
and, (ii) grantee is given not less than 10 business days advance
written notice to arrange for such temporary wire changes.
5. The grantee shall have the authority to trim trees or other natural
growth overhanging any of its cables or other facilities in the franchise
area so as to prevent branches from coming in contact with the grantee's
wires and cables or other equipment. After completion of construction
of the system, grantee may trim trees or natural growth overhanging
the facilities, and shall be permitted to charge persons who won or
are responsible for such trees or natural growth for the cost of such
trimming if and only if similar charges are assessed by and paid to
the utilities or the Township for the same activity. In any event,
grantee shall compensate the Township or property owner for, or shall
replace at its own cost and expense, all trees or shrubs damaged as
a result of any construction of the system undertaken by grantee.
6. Subject to any applicable state or federal regulations or tariffs,
the Township shall have the right to make additional use, for any
public purpose, or any poles or conduits controlled or maintained
exclusively by or for grantee in any street; provided that (i) such
use by the Township does not interfere with a current or future use
by grantee; and (ii) the Township holds grantee harmless against and
from all claims, demands, costs or such use of said poles or conduits;
and (iii) if the use of the same by the Township affects the use of the same by grantee, then and only in the event
of the same the Township shall pay a rental fee or otherwise compensate
the grantee for the use of such poles or conduit.
[Ord. 90-3, 11/12/90, § 6]
1. Construction, installation and maintenance of the television system
shall be performed in an orderly and workmanlike manner. All cables
and wires shall be installed, where possible, parallel with electric
and telephone lines. All such work shall be performed in accordance
with applicable safety code or technical requirements, including but
not limited to National Electrical Safety Code (National Bureau of
Standards); National Electrical Code (National Bureau of Fire Underwriters);
Bell System Code of Pole Line Construction; and applicable FCC or
other Federal, State and local regulations.
2. In any event, the system shall not endanger or interfere with the
safety of persons or property in the franchise area. In particular,
grantee shall substantially comply with all local, state or federal
laws or regulations which govern cable plant signal leakage or interference
with communications media. Any antenna structure used in the cable
television system shall comply with all construction, marking, and
lighting of antenna structure requirements of the United States Department
of Transportation. All working facilities, conditions, and procedures
used during construction, installation and maintenance of the cable
television system shall comply with the standards of the Occupational
Safety and Health Administration.
[Ord. 90-3, 11/12/90, § 7]
1. In those areas of the Township where all of the transmission or distribution
facilities of the respective public utilities providing telephone
communications and electric services are underground, the grantee
likewise shall construct, operate and maintain all of its transmission
and distribution facilities underground; provided that such facilities
are actually capable of receiving grantee's cable and other equipment
without technical degradation of the system's signal quality.
In those areas where the transmission or distribution facilities of
the respective public utilities providing telephone communications
and electric services are both aerial and underground, grantee shall
have the sole discretion to construct, operate and maintain all of
its transmission and distribution facilities, or any part thereof,
aerial or underground. Nothing in this Part shall require grantee
to construct, operate, and maintain underground any ground-mounted
appurtenances such as subscriber taps, line extenders, system passive
devices (splitters, directional couplers), amplifiers, power supplies,
pedestals, or other related equipment.
2. The grantee is hereby authorized to extend the system within the
area when, where and to the extent that such extension is technically
and economically feasible.
3. Whenever the grantee shall have received written requests, with any
requested monetary deposits, for cable service from at least 25 subscribers
within 1,612 cable meters (5,280 cable feet) of the same aerial trunk
cable, or from at least 30 subscribers within 1,612 cable meters (5,280
feet) of the same underground truck cable, it shall extend its system
to such subscribers solely for the usual connection and service fees
for all subscribers, provided that such extension is technically and
economically feasible. The 1,612 meters shall be measured in extension
length of grantee's cable required for service located within
the public way or easement and shall not include the length of the
necessary drop to the subscriber's home or premises. Notwithstanding
the above, the grantee shall not be required to provide service to
a subscriber's house or premises where a where a drop line from
the feeder cable to the subscriber's house or premises exceeds
76.20 cable meters (250 cable feet), until it is technically and economically
feasible to do so.
4. No person in the grantee's service area shall be arbitrarily refused service; but in recognition of the capital costs involved in unusual circumstances, including, without limitation, instances when subscriber density is less than provided for in Subsection
3 above, cable service may be made available in such lower density areas on the basis of the payment in advance of the costs of materials, labor and obtaining easement by the parties requesting cable service in order to prevent cable subscribers in more densely populated areas from subsidizing services to subscribers residing in low density areas.
A. For all residential structures hereinafter erected which are to be
served by underground utilities, the developer of the subdivision
or development may acquire cable service for such development under
the following conditions: (i) the entire cost of such undergrouding,
from the boundary of the new subdivision or, in the case of an individual
structure which is not a part of an existing subdivision, from the
lot line, to each building, shall be borne by the developer, subdivider
or owner of the property, including the reimbursement to the grantee
of its share of all trenching costs, materials and labor; and (ii)
developer, at its expense, shall perform any trenching or backfilling
necessary in preparation for the provision of cable service, including
the furnishing of any backfill material required to be imported, and
will furnish and install for the grantee any necessary distribution
conduits and substructures, including pedestals, required in preparation
for the provision of cable service and in accordance with the grantee's
plans and specifications.
B. Grantee shall not be obligated to provide cable service to such new
development unless such developer or owner agrees to bear the costs.
However, grantee shall have the right to provide cable service to
all newly developed areas of the Township at its own expense, regardless
of whether a developer or owner cooperates with grantee or pays grantee
for the expenses of installing cable on their property.
C. Grantee shall provide plans and specifications to a developer, and
shall inspect the facilities installed hereunder, and certify to the
Township prior to final approval of the subdivision or development
that the facilities installed in the development were properly installed.
All such facilities installed hereunder shall be owned, operated,
and maintained by grantee.
D. With respect to any subdivision plan which requires the approval
of the Township, the Township shall require the developer to locate
and identify on such plan easements which have been dedicated or are
to be dedicated to public use, in order to provide grantee with the
right to construct, install and maintain, on the land identified in
such plan, any equipment necessary to provide cable services to each
dwelling unit in the subdivision.
[Ord. 90-3, 11/12/90, § 7]
1. Within 60 days after acceptance of the franchise, the grantee shall
proceed with due diligence to apply for all necessary permits and
authorizations which are required in the conduct of its business,
including but not limited to any utility joint use attachment agreements,
microwave carrier licenses, and any other permits, licenses and authorizations
to be granted by duly constituted regulatory agencies having jurisdiction
over the operation of cable television systems, or associated microwave
transmission facilities.
2. Within 90 days after obtaining all necessary permits licenses and
authorizations, including right of access and clearances to use all
necessary poles and conduits, grantee shall commence construction
of the cable television system.
3. Within 90 days after the commencement of construction, grantee shall
proceed to energize complete portions of the system and begin to offer
service to 100% of the potential subscribers in the franchise area.
Completion of the construction shall be pursued with reasonable diligence
thereafter, so that cable service to those areas of the franchise
area required to be served pursuant to this Part shall be so provided
within 90 days after receiving all authorizations mentioned herein;
provided, however, that grantee shall in all events substantially
meet and comply with any construction requirements set down by the
FCC or any other applicable regulatory authority.
4. The grantee may request an extension of time to complete the construction
of the cable television system for events beyond the control of grantee
including but not limited to, acts of God, strikes of material suppliers,
construction contract delays which are beyond the control of the grantee
or similar events. A request for extension shall be made within 20
days after the grantee has actual or constructive notice of such event.
The Township shall not unreasonably withhold its consent to such request
for extension.
5. These provisions apply to new construction and are not intended to
regulate existing facilities.
[Ord. 90-3, 11/12/90, § 9]
1. In consideration of the granting and exercise of this franchise to
use the public ways, for the operation of a cable television system,
and to help defray some of the costs of regulation of the system,
grantee shall pay to the Township, during the initial term of the
franchise, a fee equal to 3% of its gross receipts as determined at
the end of the franchisee's tax year. For the first year of the
franchise, said amount shall be calculated as of the 31st of December,
first year. Said franchise fee of 3% shall remain in full force and
effect during the initial term of the franchise. If, however, the
franchisee should increase its rates, then and in that event, the
franchise fee paid to the Township shall also be increased in an amount
as determined by the Board of Supervisors wherein the same shall not
exceed 5% of gross receipts unless the regulatory agencies, departments,
or bureaus and/or laws and regulations permit a higher franchise fee.
Therefore, in the event that the franchisee should increase its rates,
the Supervisors shall have full authority and discretion to increase
said franchise fee to an amount as deemed appropriate by them within
their sole discretion as long as the same does not violate any rule
or law pertaining to the regulation of the same up to a maximum of
5% of gross receipts. Any increase in the franchise fee made by the
Supervisors and/or Township shall be effective 30 days after the date
of its enactment, ordination, and/or establishment and therein the
franchisee shall pay the franchise fee effective the date that the
same as instituted. The grantee shall continue to pay the Township
the Franchise fee of 3% (or higher if otherwise permitted) on gross
receipts unless notified by the Township as follows:
A. After execution of an agreement for the franchise and/or the granting
of a franchise and/or of a franchise permit, the Township may, at
any time during the term of the franchise, or extensions thereof,
on its own initiative, refrain from collecting a franchise fee from
the grantee, reduce the amount of the franchise fee it collects from
the grantee, or increase the amount of the franchise fee it collects
from the grantee up to a maximum of 5% of the gross receipts of grantee,
subject however, to the same being permitted by law or regulation
and as otherwise regulated under this Part.
B. The franchise payments shall be made to the Township annually within
120 days after the expiration of any calendar year or portion thereof
during which the franchise is in force. After notice to grantee delivered
pursuant to § 317 hereof that a payment is late, the Township
shall be entitled to impose on grantee a penalty in the amount of
$100 per day for each day in excess of the one-hundred-twenty-day
period in which grantee willfully fails, refuses or neglects to pay
any undisputed portion of the percentage due and owing.
C. At the time of payment, grantee shall provide the Township an annual
summary of gross receipts received during the applicable year.
[Ord. 90-3, 11/12/90, § 10]
1. Performance Bond to Township. Upon being granted a franchise, and
after the filing of the acceptances required under this Part, the
grantee shall file with the Township Secretary, and shall maintain
in full force and effect, during the term hereof, a corporate bond
or other adequate surety agreement in the amount of $15,000, subject
however to the limitation that if the initial application is for 100
homes or less the amount of said bond or surety shall be $5,000. The
bond or agreement shall be so conditioned, that in the event that
grantee shall fail to substantially comply with any one or more of
the material provisions of this Part or of such franchise, than there
shall be recoverable jointly and severally from the principal and
surety any damages or loss, or costs suffered by the Township, as
a result thereof, including attorney's fees and costs of any
action or proceeding, and cost of including the full amount of any
compensation, indemnification, cost of removal or abandonment of any
property or other costs which may be in default, up to the full principal
amount of such bond. Said condition shall be a continuing obligation
during the entire term of such franchise and thereafter until grantee
shall have satisfied in full any and all obligations to the Township
which arise out of or pertaining to said franchise. For each additional
area of the franchise or extensions thereof, the grantee shall file
and/or provide and maintain a corporate bond or other adequate security
agreement in an amount as set by the Supervisors or subject to the
approval of the Supervisors, the franchisee may obtain an extension
of the original bond for purposes of covering said additional area
and/or extension thereof.
2. Hold Harmless.
A. The grantee shall hold the Township, its officers, boards and employees
harmless from liability for damages or claims for damages and for
any liability or claims resulting from property damage or bodily injury,
(including accidental death) which arise out of the grantee's
negligent operations in conducting a cable television business in
the Township.
B. The Township shall hold grantee, its officers, directors, employees,
subscribers, assigns and successors, harmless from liability for damages,
claims for damages or liability or claims resulting from bodily injury
(including accidental death), which arise out of the Township, its
employees' or agents' negligence in dealing with or in any
way handling or affecting grantee's real or personal property
used or usable in the cable television system in the franchise area.
3. Insurance Required. Upon being granted a franchise, and after the
filing of the acceptance required under this Part hereof, the grantee
shall file with the Township Secretary, and shall thereafter maintain
in full force and effect at its own cost and expense, during the term
hereof, general comprehensive liability insurance in the amount of
$1,000,000 for bodily injuries (including accidental death) to any
person and subject to the same limit for each person in an amount
not less than $500,000 on account of any one occurrence, and property
damage liability insurance in an amount not less than $500,000 resulting
from any one occurrence. At the expiration of the initial term of
the franchise, 15 years, whereafter the same is renewed or extended
pursuant to § 313 hereafter, the franchise fee shall be
re-established at said time within the sole discretion of the Township
Supervisors subject to the rules and regulations of the Federal Communications
Commission and/or the Commonwealth of Pennsylvania and/or the United
States of America.
[Ord. 90-3, 11/12/90, § 11]
The franchise granted herein shall not be sold, assigned or
transferred, in whole or in part, either by force or involuntary sale,
or by voluntary sale, merger, consolidation or otherwise, other than
to a person or entity controlling, controlled by or under common control
with the grantee, without prior consent of the Township Supervisors,
either expressed by resolution, or by informal consent procedures.
The consent of the Township Supervisors shall not be unreasonably
withheld or delayed; provided, however, that the prospective assignee
or transferee must agree in writing to comply with all the provisions
of this Part; and provided, further, that no such consent shall be
required for a transfer in trust, by mortgage, or by other hypothecation,
in whole or in part, or to assign rights in the cable television system
to secure indebtedness.
[Ord. 90-3, 11/12/90, § 12]
A schedule setting forth the initial rates, services and charges
to be paid by subscribers for basic cable service, including connection
and service rates, shall be attached to the franchise agreement. Rates
for motels, hotels, rooming houses, trailer courts, hospitals and
rest homes are to be negotiated. Such rates, services and charges
are subject to change by grantee, and shall not be regulated by the
Township unless authorized by federal and/or state laws.
[Ord. 90-3, 11/12/90, § 13]
1. Extension. The Township may extend the franchise for an additional
five years beyond the initial 15 years if grantee so requests. Within
no more than 180 days of the expiration date of the initial term,
grantee shall, at its option, notify the Township Secretary in writing
that grantee wishes to petition for a five-year extension. The Township
shall then set a date for a Supervisor's meeting which the Township
Secretary shall advertise in a newspaper of general circulation at
least once in the 10 days prior to the meeting. At said meeting, the
Supervisors shall hear the Township on the issues raised pursuant
to the public interest standards contained in § 301 hereof.
If the Supervisors find that the public interest standards will be
met by a five-year extension of the initial term, the Supervisors
shall grant grantee's petition. If the supervisors deny the petition,
they shall give their reasons in writing within 30 days after the
meeting, and shall provide grantee with a copy of the decision within
two business days of its publication.
2. Renewal of Franchise. Prior to the expiration of the initial term
of the franchise granted hereunder, or any extension thereof, the
Township Supervisors may consider an application by grantee for renewal
of the franchise for an additional ten-year term, if, in the opinion
of the Supervisors, such renewal is in the public interest. The procedure
to consider such a renewal, unless specifically prohibited by State
or Federal rule and/or law or regulation, shall be as follows:
A. Prior to the expiration of the initial term of the franchise or any
extension thereof, grantee shall petition the Supervisors in writing
for renewal of the franchise.
B. Within 30 days after receipt by the Supervisors of grantee's
petition for renewal, the Supervisors shall hold a meeting to consider
the renewal petition, and the Township Secretary shall publish notice
of said meeting, its time, place, subject matter and parties entitled
to be heard at the meeting, in a newspaper of general circulation
at least once in 10 days immediately prior to the public meeting.
C. At the meeting, the Supervisors shall hear representatives of grantee
and interested residents on any issues raised pursuant to the public
interest standard.
D. The Supervisors shall make their decision on the grantee's petition
for renewal, and shall publish a written determination stating the
reasons for renewal or non-renewal all within 30 days after the meeting
is held. Grantee shall be provided with a copy of the written determination
within two business days after it is published.
E. If the Supervisors find renewal would serve the public interest,
the grantee shall be entitled to a renewal of the franchise and the
Supervisors shall enter into negotiations with grantee for amendments
to the expired franchise or for a new franchise. If the Supervisors
find that non-renewal serves the public interest, then the procedures
set forth herein shall apply.
3. Termination. The Township may terminate a franchise in the event
of the willful failure, refusal or neglect by grantee to substantially
comply with any material requirements or limitation contained in this
Part. The Township shall comply with the following procedures:
A. The Supervisors shall, with advice of legal counsel, make a written
determination that after reasonable investigation it appears that
grantee has willfully failed, refused or neglected to substantially
comply with the material provisions of this Part. However, the Supervisors
shall not be justified in determining that an apparent violation by
grantee of this Part exists, unless it also appears that there is
no reasonable explanation, excuse or justification for such apparent
violation. Further, a dispute between the Township and grantee over
policies, practices or procedures which are not clearly stated in
or based on the language of this Part shall not be deemed a sufficient
basis for a determination of an apparent violation.
B. If the Supervisors find good cause to make its determination on the
standards set forth above, then it shall give written notice to grantee
stating clearly its factual and legal basis for such determination.
Grantee shall then have a period of 30 days after its receipt of such
notice in which to comply with the provision. If the apparent violation
is not remedied within the thirty-day period, the Township Supervisors
may order the matter of apparent violation to be brought up for discussion
at a regularly scheduled meeting. Grantee shall be served with notice
at least 30 days prior to the meeting as to the topic, time, place
and procedure for the meeting, and the same shall be publicized by
the Township Secretary, at least once in the 10 days before such meeting,
in a newspaper of general circulation in the franchise area.
C. At the meeting, the Supervisors shall permit representatives of grantee
to be heard, together with any residents, who have requested to be
heard on the topic of the apparent violation. Based on the facts and
arguments of grantee, any relevant factual presentations of residents,
and the Supervisors' own investigation, the Supervisors shall
make a decision whether the apparent violation was, in fact, a willful
failure, refusal or neglect to substantially comply with a material
provision of the Part. Such decision shall be in writing, stating
clearly the factual and legal basis for the decision, shall be rendered
and made public within 30 days of the meeting, and grantee shall be
provided a copy thereof within two business days after the decision
is published.
D. If the Supervisors shall determine that such willful failure, refusal
or neglect by the grantee was not in the public interest and was without
just cause, then the Supervisors may, by resolution, declare that
the franchise of such grantee shall be terminated and bond forfeited
unless the grantee shall comply with the violated provision within
such period as the Supervisors may fix.
4. Procedure in Event of Termination, Non-Renewal or Denial of Extension.
A. If grantee disagrees with the Supervisor's determination as
to termination, renewal or extension, and chooses not to comply with
the material provision at issue, or does comply under protest, then
grantee may pursue any and all equitable or legal means of judicial
review. If grantee seeks judicial relief in the form of judicial stay,
injunction or other temporary restraint of the effectiveness of the
Supervisor's decision, both the Township and the Supervisors
agree not to oppose unnecessarily grantee's pursuit of such relief.
B. Pending a final disposition of grantee's judicial review, grantee
shall have the right to continue the business of providing cable service
to its subscribers, may receive revenue and profits from such business,
and shall in all ways be considered by the Township as having a claim
or right to continue as the grantee, provided that grantee shall continue
to comply with the material provisions of the Part which are not in
dispute. (Compliance by grantee with material provisions in dispute
shall not be construed as an admission of liability).
C. In the event grantee is ultimately unsuccessful in pursuit of its
judicial remedies, or if grantee is permitted to and does not comply
with any final determination, then grantee shall commence immediately,
after a judicial mandate that has been issued and entered on the records
of the court, to solicit buyers for the cable television system, and
shall use best efforts to sell said system. In the event grantee is
unable to find, after its best efforts, a bona fide buyer, who will
pay a fair market price for the system, then grantee shall have the
right to shut down and remove any or all of the equipment, property
or other facilities making up the cable television system in the franchise
area, all to be accomplished within 180 days after a final order is
issued by a Court, or by the Supervisors in the event grantee chooses
not to seek judicial review of the supervisor's final determination.
Grantee may continue to operate the system within such one-hundred-eighty-day
period, and until it is shut down and removed. However, at grantee's
sole option, it may abandon some or all of the equipment, property
or facilities of the cable television system; but in so doing, grantee
relinquishes all right to compensation by the Township or any third
party using or taking over such system after grantee has abandoned
it.
[Ord. 90-3, 11/12/90, § 14]
1. When not otherwise prescribed herein, all matters herein required
to the filed with the Township shall be filed with the Township Secretary.
2. Outlets.
A. The grantee shall provide without charge one outlet of basic cable
service to each governmental office building, fire station, police
station, and public school building that is passed by its cable television
system. Users of such outlets shall hold grantee harmless from any
and all liability or claims arising out of their use of such outlets.
B. Notwithstanding the above, the grantee shall not be required to provide
an outlet to such buildings where the drop line from the feeder cable
to said buildings or premises exceeds 76.20 cable meters (250 feet)
until it is technically and economically feasible to do so. In the
event that additional outlets for basic cable are provided to such
buildings, the building owner shall pay the usual installation and
service fees associated therewith.
3. In the case of any life threatening emergency or disaster, the grantee
shall make available its facilities to the Washington County Emergency
Service Office to provide emergency information and instructions during
the emergency or disaster period. The Township shall hold the grantee,
its agents, employees, officers, and assigns harmless from any claims
arising out of the emergency use of its facilities in accordance with
this provision to the extent that the same was or were attributable
to the acts and/or control of or by the Township.
4. Grantee shall be prohibited from directly or indirectly initiating
or using any from, procedure or device for procuring information or
data from subscribers by use of the system without prior written authorization
form each subscriber so affected. Authorization shall mean written
approval from the subscriber of the specific use or purpose for which
the information is sought. Further, it shall be unlawful for the grantee,
without such authorization, to activate or utilize any transmission
path from the subscriber's premises, in a manner which invades
subscriber's right of privacy, or for which grantee has no authorization.
However, grantee shall have the right to utilize any transmission
path to verify the technical integrity and quality of performance
of the cable television system. The provisions of this section shall
not apply to the collection of information solely for billing and
collection purposes or cable related needs or services provided by
grantee or as otherwise allowed by law.
5. If the Federal Communications Commission, or any other Federal or
State body or agency shall now or hereafter exercise any paramount
jurisdiction over the subject matter of this Part, then to the extent
such jurisdiction shall preempt or preclude the exercise of like jurisdiction
by the Township, jurisdiction of the Township shall cease and no longer
exist.
6. No person, firm or corporation within the franchise area of the grantee,
and where trunk lines are in place pursuant to §§ 304
and 305 hereof, shall be refused cable service; provided, however,
that the grantee shall not be required to provide service to any subscriber
who does not pay the applicable connection fee or service charge.
7. If at any time the grantee's cable television system or other
equipment is disturbed, damaged, or severed by a third party, the
cost of repair shall be paid by the party responsible for said damage.
The grantee may charge the responsible party for the cost of labor
and materials expended by grantee to repair said damage or replace
damaged cable plant. The Township will cooperate with the grantee
in enforcing any charge or penalty arising from such damage to grantee's
property.
8. In the event that future legislation or regulation is enacted at
the Federal or State level, grantee and the Township agree to abide
by such new legislation or regulation, and each party will have all
rights, privileges, duties and obligations provided for in such new
legislation or regulation. To the extent that future legislation or
regulation enacted by the federal or state governments should increase the rights of a municipality to regulate,
administer and control cable television systems and/or franchises
or the like, this Part and/or any amendments and/or any franchise
agreements entered into pursuant to this Part or any amendments thereto,
may be modified, altered or amended by the Supervisors pursuant to
the discretion, leeway, authority and/or powers authorized thereby
upon proper and timely notice to the franchisee.
[Ord. 90-3, 11/12/90, § 15]
The grantee shall substantially comply with all valid and applicable
requirements of federal or state government regarding equal employment
policy and practice.
[Ord. 90-3. 11/12/90, § 16; as amended by Ord.
97-5, 11/19/1997]
1. From and after the effective date of this Part, it shall be unlawful
for any person to construct, install or maintain within any public
way in the Township, or within any other public property of the Township,
or within any privately-owned area within the Township which has not
yet become a public way but is designated or delineated as a proposed
public way on any tentative subdivision map approved by the Township,
any equipment or facilities for distributing any television signals
or radio signals through a cable television system, unless a franchise
authorizing such use of such public way or property or area has first
been obtained pursuant to the provisions of this Part, and unless
such franchise is in full force and effect.
2. It shall be a violation of this Part for any person, firm or corporation
to create or make sure use of an unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise,
with any part of the franchised cable television system within this
Township for the purpose of enabling such person, firm or corporation
or third parties to receive or use any cable services without payment
to the grantee.
3. It shall be a violation of this Part for any person, without the
consent of the grantee, to willfully tamper with, remove or injure
any property, equipment or part of the cable television system for
any means for receiving cable services.
4. Said violations are punishable upon conviction of the payment of
a fine of no more than $500 and/or imprisonment of no more than 30
days and as otherwise proscribed by the Pennsylvania Crime Code.
5. Enforcement Notice.
A. If it appears to the Township that a violation of this Part has occurred,
the Township shall initiate enforcement proceedings by sending an
enforcement notice as provided in this section.
B. The enforcement notice shall be sent to the violator and, if applicable,
the owner of record of the parcel on which the violation has occurred,
to any person who has filed a written request to receive enforcement
notices regarding that parcel and to any other person requested in
writing by the owner of record.
C. An enforcement notice shall state at least the following:
(1)
The name of the violator and, if applicable, the owner of record
and any other person against whom the Township intends to take action.
(2)
The location of the violation and, if applicable, the property
in violation.
(3)
The specific violation with a description of the requirements
which have not been met, citing in each instance the applicable provisions
of this Part.
(4)
The date before which the steps for compliance must be commenced
and the date before which the steps must be completed.
(5)
That the recipient of the notice has the right to appeal to
the Board of Supervisors within a period of 10 days.
(6)
That failure to comply with the notice within the time specified,
unless extended by appeal to the Board of Supervisors, constitutes
a violation, with possible sanctions clearly described.
6. Enforcement Remedies.
A. Any person, partnership or corporation who or which has violated
or permitted the violation of the provisions of this Part shall, upon
being found liable therefore in a civil enforcement proceeding commenced
by the Township, pay a judgment of not more than $600 plus all court
costs, including reasonable attorney fees incurred by the Township
as a result thereof. No judgment shall commence or be imposed, levied
or payable until the date of the determination of a violation by the
District Justice. If the defendant neither pays nor timely appeals
the judgment, the Township may enforce the judgment pursuant to the
applicable rules of civil procedure. Each day that a violation continues
or each section of this Part which shall be found to have been violated
shall constitute a separate violation.
B. Nothing contained in this section shall be construed or interpreted
to grant to any person or entity other than the Township the right
to commence any action for enforcement pursuant to this section.
C. District Justices shall have initial jurisdiction over proceedings
brought under this section.
7. The Township shall cause its legal enforcement staff to cooperate
fully in the enforcement, prosecution and conviction of persons found
to have violated the criminal law applicable to cable service and
the cable television system.
[Ord. 90-3, 11/12/90, § 17]
All notices required herein shall be in writing, and shall be
deemed to have been duly given to the required party three business
days after having been posted in a properly sealed and correctly addressed
envelope by certified or registered mail, postage prepaid, return
receipt requested, at a post office or branch thereof regularly maintained
by the U.S. Postal Service. The notices shall be addressed as follows:
A. If to the Township: Township Secretary, Smith Township, P.O. Box
94, Slovan, PA 15078.
B. If to grantee: as supplied by grantee.
C. With a copy to: Township Solicitor, Robert N. Clarke, P.C., 15 West
Beau Street, Washington, PA 15301.
D. Parties may designate other addresses from time to time by giving
due notice to each other.
[Ord. 90-3, 11/12/90, § 18]
1. Grantee shall file its written notice of acceptance of a franchise
with the Township Secretary within 30 days after the passage and adoption
of this Part.
2. The effective date of the franchise agreement shall be the date of
the grantee's written notice of acceptance.
[Ord. 90-3, 11/12/90, § 19]
1. The franchise agreement entered into between the Township and the
franchisee shall designate the franchise area, the dates of beginning
and completion of construction work, when weekly reports regarding
electronic rebuilds and FCC applications for additional satellite
services or services are to be presented to the Township Secretary,
a listing of what service that shall be available, which shall include
the call letters, channel number, origination point, and network and
when the same shall become available, and a statement as to what is
contained in the basic cable services package. The grantee shall have
the right to make changes in its satellite programming if it is unable
to negotiate a contract with the program suppliers or if a program
supplier goes out of business or specific programming is no longer
economically feasible.
2. Rates. The rates referred to in this Part shall be established in
the underlying franchise agreement bases on the following categories.
3. Commission Fees. First outlet; each additional outlet; relocation
of an outlet; reconnection of an outlet: The rates of said items,
as referred to above, shall be specified in the franchise agreement.
The initial rates, as established by the franchise agreement, may
be increased annually by a maximum of 5%; provided, however, that
this percentage does not exceed the percentage increase of the consumer
price index for all items for the Pittsburgh area for the proceeding
12 months and is otherwise permitted by law or regulation.
4. Adjustments which exceed the 5% limit may be increased only with
prior approval of the Supervisor after a public hearing if the FCC
permits Supervisor approval in said matter. The Supervisors approval
of said rate increase shall not be unreasonably withheld.
5. The grantee shall have the right to negotiate separate rates with
the owners of motels, hotels, rooming houses, apartment houses, trailer
courts, hospitals and rest homes.
6. In addition, the grantee may make available to its subscribers, one
or more of the following pay TV cable services: Home Box Office, Showtime,
Disney Channel, Cinemax, ESPN, The Movie Channel, and the like.
7. As to said pay cable services, the grantee is reserved the right
to establish the monthly rates for said services, subject to the approval
of the Supervisors, if permitted by law, whose approval shall not
be unreasonably withheld.
[Ord. 90-3, 11/12/90, 20]
A franchise agreement shall be entered into between the Township
and the grantee or franchisee which shall encompass the terms contained
in this Part, wherein no franchise granted pursuant to this Part shall
become effective until said franchise agreement has been duly executed
and approved by the Supervisors.
[Ord. 90-3, 11/12/90, 21]
By the enactment of this Part and the execution of any franchise
agreement, the Township and/or Supervisors is not binding the Township
nor agreeing on behalf of the Township to commence, prosecute or maintain
any action on behalf of the grantee for purposes of obtaining rights-of-way
through eminent domain or otherwise.