[Ord. 1993-12, 12/14/1993]
This Part shall be known and may be cited as the "Strasburg Borough Cable Systems Ordinance".
[Ord. 1993-12, 12/14/1993]
The Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 and as may be amended in the future.
Those channels required to be carried in the basic service tier by the Act including, but not limited to, commercial and public television signals, in accordance with the Act and the public, educational and governmental local access channel required to be provided by § 308 herein. The Company may include other stations within the basic service tier in addition to the channels so listed in this definition.
The Borough of Strasburg, Lancaster, County Pennsylvania.
The governing body of the Borough of Strasburg, Lancaster County, Pennsylvania.
The one-way transmission to subscribers in the Borough of Strasburg of video and/or audio programming or other programming services and subscriber interaction, if any, which is required for the selection of such video and/or audio programming or other programming services.
A facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service, which includes video programming and which is provided to multiple subscribers within the Borough of Strasburg, with the exception of those facilities specifically excluded under § 602 of the Cable Communications Policy Act of 1984.
A grantee of rights under this nonexclusive franchise ordinance.
Revenue of the company based on income from subscription charges imposed upon residents of the Borough of Strasburg including basic service tier subscription; subscription to any service tier other than the basic basic service tier; premium service, pay-per-view excluding the share of pay-per-view revenue paid by the company to the suppliers of the pay-per-view service; and any other fee for cable service shown on the subscriber's bill as a separate line item which is a recurring fee, but not including charges for connections, disconnections and other charges for services which are normally nonrecurring in nature and which do not involve the transmission of audio or visual programming. Sales tax and other taxes collected by the company shall be deducted from the gross receipts before computation of the franchise fee due to the Borough.
Provided, however, the company shall include not less than 60% of the revenue of the company generated from pay-per-view service in the computation of gross receipts notwithstanding the actual amount or percentage of the per program revenue paid by the Company to the suppliers of pay-per-view service. The Borough reserves the right at any time to include the entire revenue from pay-per-view service within the definition of gross receipts during the term of the franchise or any renewal thereof if the Borough shall provide the Company with written notification of its intention to do so not less than 60 days before the end of the calendar year. In such event the inclusion of the entire revenue from pay-per-view service shall be included in the computation of gross receipts in the next and each succeeding year until changed by action of the Borough Council.
A grouping of programming services or channels which is offered to subscribers as a package.
All public streets, right-of-way and roads owned by or under the jurisdiction of the Borough of Strasburg.
[Ord. 1993-12, 12/14/1993]
Upon application from the company in compliance with this Part, including acceptance of the terms and conditions contained herein, the Borough may grant to the company a nonexclusive franchise to construct, operate and maintain a cable system for cable service as may be prescribed or permitted by the Federal Communications Commission and use poles, wires, conduits and appurtenances under, along, across or upon any or all public streets, ways, alleys or parkways, as the same now or may hereafter exist within the Borough and within the boundaries of the Borough as the same may hereafter be extended, for transmitting and distributing electricity and electrical, electronic, digital and fiber optic impulses and signals to the residents of the Borough upon the terms and conditions and subject to the limitations herein set forth.
[Ord. 1993-12, 12/14/1993]
Upon the annexation of any territory to the Borough, the portion of any cable system of the company that may be located or operated within said territory shall be thereafter subject to all the terms of this Part as though it were an extension made hereunder.
[Ord. 1993-12, 12/14/1993]
1.
This Part shall constitute a contract between the Borough and the company for all the uses, services and purposes set forth herein, and the company by its acceptance of the provisions of this Part binds itself to provide the necessary cable system and cable service and to establish, operate and maintain the cable system contemplated by this Part, continuing without substantial interruption except for causes beyond its control until the expiration of the franchise. The company shall enter into an agreement in writing, in a form satisfactory to the Borough, evidencing the company's acceptance of the terms and conditions of this Part prior to exercising any rights under the franchise herein granted. A permit fee of $500, or such other amount as may be established by resolution of the Borough Council from time to time, shall be paid to the Borough at the time application is made by the company to operate, or to renew an existing franchise, under the terms of this Part. Upon acceptance of a franchise under this Part, the company shall reimburse the Borough for any advertising costs and legal expenses incurred in connection with the development, negotiation, drafting or enactment of this Part or the granting or renewal of a franchise hereunder.
2.
No company may initiate new cable service in the Borough prior to obtaining a franchise in accordance with this Part. If any cable operator within the Borough refuses to accept the provisions of this Part, such operator shall be considered a franchise at will and shall be subject to all the provisions of this Part, including the payment of franchise fees, until the cable operator ceases operations either voluntarily or upon demand of the Borough in accordance with any applicable termination or renewal procedures set forth in this Part.
[Ord. 1993-12, 12/14/1993]
The company shall idemnify and save the Borough and its officials, agents and employees harmless from any and all claims for personal injuries or property damage, and any other claims and costs, including attorneys' fees, expenses of investigation and litigation of claims and suits thereon, which may arise from the installation and/or operation of the company's cable system. In case suit shall be filed against the Borough, either independently or jointly with the company, to recover for any claims or damages, the company, upon notice to it by the Borough, shall defend the Borough, its officials, agents and employees, against said action, and, in the event of a final judgment being obtained against the Borough, either independently or jointly with the company, the company shall pay the judgment and all costs and hold the Borough harmless therefrom. If a judgment is not obtained against the Borough, the company shall reimburse the Borough for all costs and expenses incurred, including reasonable attorneys' fees and costs of investigation and defense. For this purpose, the company shall carry and at all times keep in force automobile liability insurance, products liability insurance and a general liability insurance policy or policies in the name of the company and the Borough, as their respective interest may appear, insuring the company and the Borough against any and all liability arising from the installation, maintenance and/or operation of the cable system. A certificate or certificates of insurance indicating such coverages and indicating that the Borough is an additional insured shall be provided to the Borough for review by the Borough Solicitor on an annual basis or more frequently if such policy or polices will expire within one year of the date of said certificate or certificates. Such insurance policy or policies shall be in limits of not less than $500,000 for damage to property in any one accident, and not less than $1,000,000 for injury or death of any one person, and not less than $2,000,000 for injury or death to all persons affected by any one accident. Such policies of insurance shall be issued by a company or companies authorized to do business in the Commonwealth of Pennsylvania. The company shall carry workers' compensation coverage for all of its employees subject to such coverage and shall submit to the Borough Secretary a certificate of insurance showing the workers' compensation coverage is in effect on an annual basis or more frequently if such policy will expire within one year of the date of said certificate.
[Ord. 1993-12, 12/14/1993]
1.
The Company shall pay a franchise fee to the Borough during the life of the franchise, said franchise fee to be in the amount of 5% of the company's total gross receipts per year as derived from cable service operations in the Borough. The franchise fee shall be due and payable in accordance with the following schedule:
Due Date | Gross Receipts Received During the Period | |
|---|---|---|
March 1 | July 1 through December 1 of the preceding year | |
September 1 | January 1 through June 30 of the same year |
2.
In addition to the franchise fee paid to the Borough, the company shall provide free standard cable television service to one outlet within any public school, any firehouse, ambulance, rescue service or other emergency service building and any municipal or public service building if requested to do so in writing by the Borough, provided the cable system's existing trunk or distribution service passes such building and the building can be served with a service drop of 150 feet or less.
3.
Notwithstanding anything to the contrary set forth in this Part, the Borough specifically reserves the right to increase the amount of the franchise fee and to change the method of computing such fee to the extent authorized by Federal and State laws in effect from time to time during the term of this franchise or any renewal thereof. In such event the Company may, unless otherwise prohibited by law, pass through to subscribers the amount of any increase in the franchise fee.
[Ord. 1993-12, 12/14/1993]
The company shall provide for the Borough, along with those other Lancaster County, Pennsylvania, municipalities under contract with the Company, at least one dedicated, noncommercial, multimunicipality, public access channel for public, educational and municipal government use. Borough Council shall determine which Borough programs shall appear on this public access channel. The public access channel required herein shall be included within the basic service tier.
[Ord. 1993-12, 12/14/1993]
The Borough hereby reserves the right, to the extent permitted by Federal and State law including, but not limited to, the Cable Television Consumer Protection and Competition Act of 1992, to regulate the rates charged by the Company for video and/or audio programming provided by the Company's cable system, to enforce regulations prescribed by the Federal Communications Commission and to file complaints challenging a rate or rates as unreasonable.
[Ord. 1993-12, 12/14/1993]
The company shall during the continuance of this franchise provide facilities and service sufficient to meet the needs of the public and shall maintain its facilities and provide service in accordance with accepted industry standards. The company shall maintain, operate and render efficient service in accordance with the Act and under such applicable rules, regulations and standards as are from time to time established by the Borough or by any Federal or State agency having jurisdiction. The Borough expressly reserves the right to establish lawful rules, regulations and standards during the term of the franchise. The cable system shall be installed and maintained in accordance with good engineering practices. All construction shall be done in a good workmanlike manner, free of defects which may be a hazard to life and limb, and in conformance with the standards set forth in the National Electric Safety Code. The following additional service standards shall apply to any franchise granted under this Part:
A.
Notice of Interruption for Repairs. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the company shall attempt to do so at such times as shall cause the least amount of inconvenience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall attempt to give reasonable notice thereof to its customers.
B.
Continuous Service. Company service shall be continuous daily during the regular telecast operating hours of the stations whose TV broadcasts are being transmitted.
C.
Interference. Subject to Federal technical standards, the company shall at all times operate the cable system so as not to adversely affect or interfere with existing radio and television reception and shall prevent radiation from the company's cable system.
D.
Complaints. The company shall maintain a toll-free telephone line with seven day per week service to receive complaints. The company shall provide subscribers with a written explanation of the company's complaint policy. The company agrees to respond to and investigate all complaints received from its subscribers within the Borough and to resolve said complaints in an efficient and timely manner if at all technically and reasonably possible, and the company's agents or employees shall be available for such purposes in the Borough.
[Ord. 1993-12, 12/14/1993]
The company shall keep full, true, accurate and current books and records reflecting its investment and its operation under this Part, which books and records shall be made available on a confidential basis for inspection and copying by officials of the Borough, including, but not limited to, Borough auditors, elected or appointed, the Borough controller or an independent certified public accountant retained by the Borough. Should the company keep its books in a manner reflecting its investment and its operation on a system-wide basis, such books and records shall be made available on a confidential basis for inspection and copying by said officials and agents of the Borough; provided, however, that the company shall maintain separate records and books of the subscriber receipts derived from the company's operations in the Borough. The Borough shall not be precluded from disclosing any information concerning the company's books and records in any judicial, administrative or enforcement proceeding.
[Ord. 1993-12, 12/14/1993]
It is expressly understood that the Borough has no control, standard or regulation pertaining to the subject matter of programs distributed by the company. The company agrees to idemnify and save harmless the Borough, its officials, agents and employees, from all claims, suits and actions at law or equity (including attorneys' fees and expenses of investigation and defense relating thereto) for libel, slander, invasion of privacy and patent or copyright infringement in any action arising out of the subject matter of programs transmitted by the company. The company further agrees that in the event the Borough is made a party defendant in any action arising out of subject matter of programs transmitted by the company, the company shall at its sole cost and expense defend such action and any appeals therefrom.
[Ord. 1993-12, 12/14/1993]
The Company shall not sell, transfer, lease or assign this franchise without written approval of Borough Council, which approval shall not be unreasonably withheld. No sale, lease or transfer shall be effective until the vendee, assignee or lessee has filed with the Borough Secretary an instrument accepting the terms of the franchise and agreeing to perform all the conditions thereof.
[Ord. 1993-12, 12/14/1993]
The following conditions shall apply to street occupancy by the company:
A.
Use. All transmission and distribution structures, lines and equipment erected by the company within the Borough shall be located with the approval of the Borough Council and be so located as to cause minimum interference with the rights and reasonable convenience of property owners and the traveling public who use the streets of the Borough. Upon request, the company shall furnish the Borough with a map showing the cable system in sufficient detail to assure the Borough of being currently advised as to the location of cables. Upon request, it shall be the responsibility of the company to keep the Borough advised of any and all changes, additions and removals to the cable system except for the individual subscribers' connection wires.
B.
Restoration. In the case of any disturbance of pavement, sidewalk, driveway or other surfacing, the company shall, at its own cost and expense, replace and restore all paving, sidewalk, driveway or other surface of any street disturbed in as good condition as before said work was commenced in accordance with the Borough or Pennsylvania Department of Transportation standards, as applicable.
C.
Relocation. In the event that at any time during the term of a franchise granted hereunder, the Borough shall lawfully elect to alter or change the location or grade of any street, road or other public way or if in the opinion of the Borough Council a pole or pole line interferes with the necessary convenience of the Borough or property owner, then upon reasonable notice by the Borough, the company shall remove, relay and relocate its poles wires and cables or other cable system fixtures at its own expense.
D.
Placement of Fixtures.
(1)
It is the policy of the Borough, and it is understood by the company, that where distribution lines are to be installed along any public street, the same shall be attached to existing utility poles and not to additional poles placed on the same side of the street as existing utility poles. It is understood and agreed that this restriction and limitation shall extend to any and all streets within the limits of the Borough, even though some of said streets may be part of the State highway system. A waiver of this requirement may be granted to the company, but said waiver shall be for good cause shown and in the sole discretion of the Borough Council.
(2)
Before the company sets poles or constructs any structure on Borough property, streets or rights-of-way, it shall file with the Borough detailed specifications showing the exact location, height and dimension of the poles or structures to be erected. The poles or structures shall not be erected until such specifications shall be approved in writing by Borough Council. All wires, cables and other overhead equipment shall be at such minimum heights as are or may be required by the Pennsylvania Public Utility Commission, the Pennsylvania Department of Transportation or any nationally recognized building or electrical code.
(3)
When the company makes written application for a waiver or submits specifications for construction and Borough Council is uncertain as to the exact location of the limits of the right-of-way of any street or road, then in its discretion Borough Council may require the same be surveyed by a surveyor selected by it, the cost of said survey to be paid by the company.
E.
Underground Placement. It is the policy of the Borough, and it is understood and agreed to by the company, that all distribution lines, wires and cables shall be located underground in those areas of the Borough where utility services are located underground.
F.
Tree Trimming. The company shall have the authority and the obligation to trim trees upon and overhanging streets, roads and public places of the Borough so as to prevent the branches of such trees from coming in contact with wires and cables of the company, all trimming to be done in accordance with Borough regulations and at the expense of the company.
G.
Use of Poles and Fixtures. The company agrees that it shall, upon request, furnish a copy of any contract entered into with any public utility for the use of its poles by the company and shall set forth the terms, conditions and duration of said contract. The company agrees that the copy of the aforementioned contract shall be filed upon written request with the Borough Secretary prior to starting any installation of wires or other facilities on Borough streets or rights-of-way under the franchise.
H.
Removal of Wires from Premises of Subscriber. The company shall, on request of any subscriber, promptly remove all wires, cables and related installations from the premises of such subscriber subject to the provisions of any applicable State and Federal laws and regulations.
I.
Removal of Wires, Cables, Poles and Installations from Borough Streets. The company shall remove or cause to be removed from the streets, roads and public ways of the Borough, and from all public property, all of the wires, cables, poles and installations of any kind or nature whatsoever which have been installed under the authority of the franchise granted hereunder upon the termination of the franchise or upon cessation of operations under the franchise by the company, its successors or assigns, for any reason whatever.
J.
Permits. The company shall apply for all required permits and shall not undertake any construction without receipt of such permits, issuance of which shall not be unreasonably delayed by the Borough.
[Ord. 1993-12, 12/14/1993]
For the purpose of administering this Part, the company shall, concurrent with the payment of the fee specified in § 307 hereof, file a verified statement of the gross receipts received from subscribers in the Borough for the preceding six-month period. This statement shall include a breakdown of gross receipts from (i) the basic service tier; (ii) each other service tier (except premium channels or pay-per-view); (iii) premium channels; and (iv) pay-per-view.
[Ord. 1993-12, 12/14/1993]
The franchise and rights herein granted shall be deemed to commence on September 5, 1993 and shall continue in full force for a term of 15 years from September 5, 1993, expiring on September 4, 2008. If the company shall commence operations within the Borough after September 5, 1993, the franchise and rights herein granted shall commence upon the granting of a franchise by the Borough and shall expire on September 4, 2008. Franchise fees under a franchise granted by this Part shall accrue commencing on the later of September 5, 1993, or the commencement of operations within the Borough by the Company.
[Ord. 1993-12, 12/14/1993]
The company shall extend service to Borough residents not serviced as of the effective date of this Part so long as the number of occupied dwelling units per mile, or fraction thereof, of distribution system (density) within the extension area is equivalent to or greater than 30 dwelling units per underground mile of cable plant or 20 dwelling units per aerial mile of cable plant. The company shall not deny access to cable service to any group of potential residential subscribers because of the income level of the area in which the group resides. The company may use other alternative methods of extending service into areas where the minimum density is less than set forth herein, including the use of microwave, satellite or other means where, in the opinion of the company, the extension is not economically feasible, or by negotiating a cost-sharing agreement with the developer of a low density area or with any of the residents of a low density area in order to make such an extension of service economically feasible, or the company may extend service into such low density area at its own discretion. Upon written request for cable service from the developer or any of the residents in a low density area, the company shall respond in writing within 60 days of such request to the requestor, with a copy to the Borough, and provide information regarding the potential for extending cable service or of options available, according to the provisions herein. Notwithstanding the foregoing, the company shall not be required to extend cable service into an area which is presently being served by a different company under a franchise granted under this Part.
[Ord. 1993-12, 12/14/1993]
The Borough Council may at any time, subject to the provisions of the Act, declare a forfeiture of this grant for violation or default by the company of any of the material terms thereof, provided that none of the terms of this grant shall be deemed to be violated so as to permit such forfeiture unless the company shall first be given written notice by the Borough of such violation or default and of the attempt to declare forfeiture. Thereafter, if such violation or default shall continue for a period of more than 90 days, all the rights and privileges of the company under the provisions of this Part may be forthwith declared forfeited and revoked. If any action shall be instituted or prosecuted directly or indirectly by the company, or by its stockholders or creditors, to set aside or have declared void any terms of this grant, the whole of this grant may be thereupon forfeited and annulled at the option of the Borough Council. Provided, however, that no forfeiture shall occur if the company brings a challenge this Part based upon a future change in State or Federal law which would render provisions of this Part invalid. This exception shall not apply if such change to State or Federal law contains a provision authorizing the continuation of existing ordinances. Provided, further, the company shall not be deemed to be in default of performance of any provision of this grant, nor forfeiture invoked, for any violation or failure to perform any provision hereof due to strikes, lockouts, insurrections, acts of God or any cause beyond the control of the Company.
[Ord. 1993-12, 12/14/1993]
The company shall, at all times during the life of this franchise, be subject (i) to the terms of this Part, (ii) to all lawful exercises of the police power by the Borough, (iii) to such reasonable regulations as the Borough shall hereafter by resolution or ordinance provide which are not expressly forbidden by or inconsistent with the provisions of the Act and (iv) to all other applicable laws, rules and regulations now in effect or hereafter enacted.
[Ord. 1993-12, 12/14/1993]
The company shall hold the Borough harmless from the alleged violation of any utility franchise previously or hereafter granted by the Borough. The granting of a franchise under this Part shall not be construed as an undertaking or guarantee of the efficiency of the company or maintenance of service by the company. The Borough assumes no responsibility for the acts or omissions of the company other than to require, to the extent the Borough elects to do so, compliance with this Part.
[Ord. 1993-12, 12/14/1993]
Whenever, by the terms of this Part, notice is required to be given by the Borough to the company, it shall be given by delivering to an officer or manager of the company written notice thereof during ordinary business hours at the principal office of the company in Lancaster County, Pennsylvania, or by mailing the same by certified mail, postage prepaid, return receipt requested, to said principal office or to such other address as may be provided by the company to the Borough in writing. Whenever the company is required to give notice to the Borough, it shall do so by leaving or delivering written notice at the office of the Borough Secretary during ordinary business hours, or by certified mail, postage prepaid, return receipt requested, to the Borough Secretary, such notice being effective upon receipt by the Borough.
[Ord. 1993-12, 12/14/1993]
The Borough hereby reserves the right to impose further duties and obligations upon the company when and if permitted by Federal or State law. The Borough expressly reserves the right to establish lawful and reasonable rules, regulations and standards for the provision of cable service during the term of the franchise, which rules, regulations and standards shall not be inconsistent with the Act, as the Act may be amended in the future, or any rule or regulation thereunder.
[Ord. 1993-12, 12/14/1993]
Any person, firm, association, partnership or corporation who or which violates any of the provisions of this Part shall, upon conviction thereof, be sentenced to pay a fine of not less than $100 nor more than $600, and in default of the payment of the fine, such person, the members of such partnership or the officers of such corporation shall be liable to imprisonment for not more than 30 days.
[Ord. 1993-12, 12/14/1993]
In addition to or in lieu of the penalties provided in § 323 hereof, the Borough may commence action to collect franchise fees which are due and payable under this Part, and any violation of provisions of this Part may be abated or enforced by proceeding against the violator in a court of equity for relief.
[Ord. 1993-12, 12/14/1993]
Any franchise granted under the provisions of this Part shall be considered for renewal in accordance with applicable law existing at the time application for renewal of such franchise is made by the company.
[Ord. 1993-12, 12/14/1993][1]
This Part shall take effect and be in force as provided by law. The term of any franchise granted hereunder and the commencement date for payment of franchise fees shall be governed by § 316 of this Part.
[1]
Editor's Note: Section 3. Repealer. Ordinance No. 109A, codified as Part 3 of Chapter 13 of the Code of Ordinances, as amended by Ordinance No. 1993-9, and all other ordinances which are inconsistent herewith are repealed. Notwithstanding the foregoing, should this Ordinance be determined to be invalid, Ordinance No. 109A, as amended by Ordinance No. 1993-9, shall remain in full force and effect.