[Ord. 624, 12/29/1993, § 1]
This Part shall be known and may be cited as the "Cable Television
Ordinance."
[Ord. 624, 12/29/1993, § 2]
For the purpose of this Part the following terms, phrases and
words shall have the following meanings:
CABLE SERVICE
The provision of any lawful service through data transmission
or electrical or electronic signal transmission.
CABLE SYSTEM
A facility that crosses public rights-of-way, consisting
of a set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide cable
services as well as noncable services to customers but such term does
not include (1) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (2) a facility
that serves only subscribers in one or more multiple unit dwellings,
not including single-family dwellings under common ownership, control
or management unless such facility or facilities uses any public right-of-way;
(c) a facility of a common carrier which is subject, in whole or in
part, to the provision of Title II of the Communications Act of 1934,
except that such facility shall be considered as a cable system to
the extent such facility is used in transmission of video programming
directly to subscribers; or (4) any facilities of any electric utility
used solely for operating its electric utility system.
GRANTEE
Any person or entity which is granted a nonexclusive franchise
pursuant to the terms of this Part.
PERSON
Any person, firm, partnership, association, corporation,
company or organization of any kind.
[Ord. 624, 12/29/1993, § 3]
A nonexclusive franchise to construct, operate and maintain
a system within all or any portion of the Borough is required of anyone
desiring to provide cable service in the Borough. A franchise may
be granted by the Borough Council by resolution or written approval
of franchise application to any person, firm or corporation whether
operating under an existing franchise or not who or which offers to
furnish and provide such cable service. Such franchises shall be subject
to the following conditions, in addition to those set forth elsewhere
in this Part:
A. Nonexclusive Grant. No right to use and occupy said streets, alleys,
public ways and places granted pursuant to this Part shall be deemed
to be exclusive and the Borough reserves the right to grant rights
to any other qualified company at any time. The foregoing notwithstanding,
in the event any material provision(s) of any franchise granted by
the Borough to any subsequent grantee is (are) more favorable (by
inclusion, exclusion or altering of such material provision(s)) to
such subsequent grantee than the corresponding provision(s) of a previous
grantee's franchise, such previous franchise shall be deemed
to be amended to include all such more favorable provision(s).
B. If Borough Council permits anyone to operate a system within the
Borough without a franchise, the qualifying company shall not be obligated
to comply with the terms and conditions of this Part until such time
as Borough Council requires such other person to apply for and Borough
Council actually grants a franchise to it in accordance with the terms
and conditions of this Part.
[Ord. 624, 12/29/1993, § 4]
Grantees shall, at all times during the life of a franchise
granted pursuant hereto, be subject to all lawful exercise of the
police power by the Borough and to such reasonable regulation pursuant
to the exercise of such police power as the Borough, Commonwealth
of Pennsylvania or United States of America shall hereafter by resolution,
ordinance, statute or regulation provide including:
A. Interference. If there is any interference on any television set,
radio or other electronic device not connected with the conductors
or fixtures of the grantee which is caused by the conductors or fixtures
of the grantee the grantee shall immediately, at its own cost and
expense, eliminate such interference. If such interference cannot
be eliminated within 48 hours the Borough may direct the suspension
of the operation of the grantee within the affected area of the Borough
until such interference is eliminated.
B. Building Permits. In addition, the grantee shall apply for and take
out any and all building permits required by the Borough for any construction
to be undertaken by said grantee. Such permits will not be unreasonably
withheld or delayed by the Borough. Cost of such permits shall be
considered to have been paid as part of the grantee's franchise
fee payments.
[Ord. 624, 12/29/1993, § 5]
The grantee shall save the Borough harmless from any suit, judgment,
claim or demand whatsoever arising out of the operations of the grantee
in the construction, operation or maintenance of its system in the
Borough excluding any activities that are the result of gross negligence
or deliberate acts or omissions of the Borough, its officers, employees,
agents, boards or commissions. The Borough shall notify the grantee's
representative in the Borough within 10 days after the presentation
of any claim or demand, either by suit or otherwise, made against
the Borough on account of any damages or losses as aforesaid resulting
from the operations of the grantee. In order for the Borough to assert
its rights to be indemnified and held harmless the Borough must notify
the grantee of any claim or legal proceeding which gives rise to such
right, afford grantee the opportunity to participate in and control
fully any such compromise, settlement, resolution or disposition of
such claim or proceeding and cooperate fully in the defense of such
claim and make available to the grantee all such information under
its control relating thereto. The grantee shall furnish to the Borough,
prior to the grant of a franchise hereunder, insurance of not less
than $500,000 for any one person and $1,000,000 for any one accident
and property damage insurance of not less than $500,000 duly issued
by an insurance company or companies authorized to do business in
the Commonwealth of Pennsylvania, said insurance to cover all operations
by the grantee within the Borough. Upon request, written evidence
of the maintenance of such insurance in full force and effect shall
be furnished annually thereafter to the Borough.
[Ord. 624, 12/29/1993, § 6]
The grantee may promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform
its obligations under a franchise granted pursuant to this Part and
to assure an uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions hereof, additional regulations
or ordinances of the Borough or the laws of the Commonwealth of Pennsylvania
or the United States of America.
[Ord. 624, 12/29/1993, § 7]
1. Use. All transmission and distribution structures, lines and equipment
erected by the grantee within the Borough shall be so located as to
cause minimum interference with the use by others of streets, alleys
and other public ways and places and to cause minimum interference
with the rights or reasonable convenience of owners of property which
abuts the said streets, alleys or other public ways and places.
2. Restoration. In case of any disturbance of pavement, sidewalk, driveway
or other surfacing, grantee shall at its own cost and expense and
in a manner approved by the Borough Engineer or other person designated
by the Council replace and restore all paving, sidewalk, driveway
or surface of any street or alley disturbed in as good condition as
before said work was commenced.
3. Relocation. In the event that at any time during the period of any
franchise granted pursuant to this Part the Borough shall lawfully
elect to alter or change the grade or location of any street, alley
or other public way, grantee, upon reasonable notice by the Borough,
shall remove, relay and relocate it poles, wires, cables, underground
conduits, manholes and other fixtures at its own expense.
4. Placement of Fixtures. Grantee, insofar as it is reasonably possible
to do so, shall locate its wires, cables, conduits and other television
conductors and fixtures on existing utility poles of either the electric
or the telephone company. The grantee shall not place poles or other
fixtures where the same will interfere with any gas, electric or telephone
fixtures, water hydrant or main and all such poles or other fixtures
placed in any street shall be placed at the outer edge of the sidewalks
and inside the curb line. Those placed in alleys shall be placed close
to the line of the lot abutting on said alley and in such a manner
as not to interfere with the usual travel on said alleys.
5. Temporary Removal of Wire for Building Moving. Grantee shall, on
the request of any person holding a building permit issued by the
Borough, temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same and the grantee
shall have the authority to require such payment in advance. The grantee
shall be given not less than 72 hours advance notice to arrange for
such temporary wire changes.
6. Tree Trimming. The grantee shall have the authority to the same extent
that the Borough has such authority to trim trees and upon overhanging
streets, alleys, sidewalks and public places of the Borough so as
to prevent the branches of such trees from coming in contact with
the wires and cables of the grantee.
[Ord. 624, 12/29/1993, § 8]
1. Borough Rules. The Borough may adopt by resolution such additional
regulations as it shall find necessary in the exercise of he police
power; provided, that such regulations shall be reasonable and not
in conflict with the laws of the Commonwealth of Pennsylvania and
the United States.
2. Use of System by the Borough. The Borough shall have the right, during
the life of this franchise, free of charge, where aerial construction
exists, of maintaining upon the poles of the grantee within the Borough
wires and fixtures necessary for police communications, fire alarm
and civil defense warning systems. The Borough will be responsible
for installation and maintenance of any such systems. If any such
systems interfere with operation or maintenance of the system, then
the grantee shall repair, more or remove equipment and shall be reimbursed
by the Borough for all reasonable costs of labor and material. The
Borough shall indemnify and hold the grantee harmless from any and
all claims, demands or judgments whatsoever arising out of the use
of the system by the Borough unless the claim arises out of an alleged
negligent act of the grantee.
3. Inspection. The Borough, at its own cost, shall have the right to
inspect all construction or installation work during such construction
or installation or at any time after completion thereof in order to
insure compliance with the provisions of this Part and all other governing
ordinances.
4. The Borough maintains the right to regulate the franchisee in accordance
with any and all rights and regulations granted through Federal law
to the Borough.
[Ord. 624, 12/29/1993, § 9]
The grantee will, upon request, provide free installation and
standard service to one outlet in each municipal building, public
and private school building and police, fire and ambulance station
within the Borough provided such structures are within 200 feet of
existing service area.
[Ord. 624, 12/29/1993, § 10]
1. The grantee will provide for prompt service calls which, during regular
business hours, shall be responded to within a maximum of 24 hours
from the time of complaint.
2. Weather permitting and absent exigent circumstances, installation
of individual service will take place within 10 days of the application
in the cases of aerial installations and within 60 days in cases of
underground installations, where feasible.
3. The grantee agrees to credit all customers within the Borough for
any loss of service (other than those losses causes or required by
the customer) in excess of 24 hours.
4. The grantee shall maintain an office in the Borough. The grantee's
office shall be open during reasonable and usual business hours, shall
have a listed telephone or telephones and be so operated that complaints
and requests for repairs or adjustments may be received at any time.
[Ord. 624, 12/29/1993, § 11]
1. Any grantee holding a franchise pursuant to the terms of this Part
shall pay to the Borough for the privilege of operating its community
television system under such franchise the sum of 5% of the annual
gross cable television revenue from basic and standard service monthly
fees. As used in this Part, annual gross cable television revenues
shall not include Pennsylvania sales tax, if any, imposed on cable
service and any fees payable to the Borough by the cable operator
for the privilege of operating its community television system within
the Borough. Termination of operation or failure to undertake operation
by the grantee within one year of the granting of a franchise hereunder
shall terminate liability under this taxing provision.
2. The grantee shall make payment to the Borough of such fees on an
annual basis within 30 days following the anniversary date of the
grant of its franchise.
[Ord. 624, 12/29/1993, § 12]
At all times during the term of this franchise the grantee shall
maintain accurate and complete books of account and records for the
purpose of providing a correct financial revenue statement for franchise
fee computation. Upon request by Borough Council these records shall
be made available to Borough Council at the grantee's regular
place of business. The grantee shall be given no less than 10 days
written notice of any such request.
[Ord. 624, 12/29/1993, § 13]
Any franchise granted hereunder shall be for the initial term
of 15 years.
[Ord. 624, 12/29/1993, § 14]
1. All applicants for a franchise shall submit to the Borough a statement
containing the following:
B. Address of the applicant.
C. Evidence of financial condition of the applicant and, if the applicant
is a corporation or partnership, the names of the principal stockholders
or partners, whichever is applicable.
D. Description of the area to be covered by the franchise.
2. Upon receipt of the above information, together with such other information
which is reasonably related to the ability of the grantee to meet
the cable related needs of the community, the Council shall determine
whether or not it is in the best interests of the Borough to grant
a franchise to the applicant.
[Ord. 624, 12/29/1993, § 15]
1. Upon revocation of the franchise by the Borough, or at the end of
the term of a franchise, the grantee shall remove all of its equipment
and other facilities from the Borough within a reasonable time and
shall restore as nearly as possible all public and private property
affected thereby to the condition it was in prior to the installation
of such equipment and facilities.
2. In addition to all other rights and remedies retained by the Borough
under this Part, the Borough shall have the right to revoke a franchise
if the grantee knowingly fails to substantially comply with any material
provisions of this Part or the franchise agreement. The Borough shall
not have the right to revoke a franchise if the grantee cures the
material breach in accordance with subsection (A), below, or if the
material breach occurs without fault of the grantee or occurs as a
result of circumstances beyond the grantee's control. Revocation
shall be by ordinance duly adopted by 3/4 of all the members of the
Borough Council in accordance with the following procedures:
A. The Borough Council shall notify the grantee in writing of the alleged
failure of compliance setting forth the reasons for alleging that
the failure is knowing and substantial. The grantee shall have 60
days subsequent to the receipt of the notice to correct the failure
and respond to the Borough Council.
B. Within 30 days of the receipt of the grantee's response, or
if the grantee fails to respond, the Borough Council, if it concludes
that a basis for revocation still exists, shall notify the grantee
in writing of this conclusion.
C. Within 30 days of the determination that a basis for revocation exists,
the Borough Council shall hold a public hearing upon reasonable notice
to the grantee to consider whether revocation of the franchise is
consistent with the public welfare. At the public hearing the grantee
shall be given an opportunity to address the grounds for revocation
and to present evidence to examine witnesses and to be represented
by counsel. The Borough will provide a stenographic record of the
hearing. The Borough shall, within 21 days of the hearing, either
determine not to revoke the franchise or revoke the franchise absolutely
or conditionally. Borough Council shall prepare a written decision
setting forth the reasons for any revocation of the franchise. No
revocation will be deemed effective, however, until either the grantee
accepts in writing the ruling of the Borough Council or has exhausted
all its administrative and judicial appeals and the Borough Council's
ruling has been upheld by a court of last resort.
[Ord. 624, 12/29/1993, § 16]
A franchise may be renewed by he Borough pursuant to the procedures
established in this Section and applicable Federal and State law and
regulations.
A. During the six-month period which begins with the thirty-sixth month
before the expiration of the franchise the Borough may on its own
initiative and shall at the request of the grantee commence proceedings
which afford the public in the franchise area appropriate notice and
participation for the purposes of:
(1) Identifying future cable-related community needs and interests.
(2) Reviewing the performance of the grantee under the franchise during
the then current franchise term.
B. Upon completion of such proceedings the grantee may submit a proposal
for renewal. Upon the request of the Borough a grantee shall submit
a proposal for renewal. Subject to restrictions contained in the Cable
Act, any such proposal shall contain such material as the Borough
may require, including proposals for an upgrade of the system. The
Borough may establish a date by which any such proposal shall be submitted.
C. Upon submittal of a proposal for the renewal of a franchise the Borough
shall provide prompt public notice of such proposal and during the
four-month period which beings on the completion of any proceedings
under subsection (A) shall either renew the franchise or issue a preliminary
assessment that the franchise should not be renewed and commence at
the request of the grantee or on its own initiative an administrative
proceeding to consider whether:
(1) The grantee has substantially complied with the material terms of
this Part.
(2) The quality of the grantee's cable service, except for the mix,
quality and level of programming or other services provided over the
system, has been reasonable in light of community needs.
(3) The grantee has the financial, legal and technical ability to provide
the cable services, facilities and equipment as set forth in the proposal.
(4) The proposal is reasonable to meet future cable-related community
needs and interests taking into account the cost of meeting such needs
and interests.
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In any administrative proceeding the grantee and the public
shall be afforded notice and the grantee and the Borough shall be
afforded fair opportunity for full participation including the right
to introduce evidence, to require the production of evidence and to
question witnesses. A transcript shall be made of any such proceeding.
At the completion of an administrative proceeding the Borough shall
issue a written decision granting or denying the proposal for renewal
based upon the record of such proceeding and shall transmit a certified
copy of such decision to the grantee. Such decision shall state the
reasons thereof.
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D. Any refusal to renew a franchise or denial of a proposal for renewal
shall be based only on one or more adverse findings made with respect
to the factors set forth in subsection (C), based upon the record
of the proceeding. The Borough may not base a refusal to renew or
a denial of renewal upon factors in subsection (C) unless the Borough
has given a grantee notice of and an opportunity to cure violations
or problems, or has waived its right to object to, or effectively
acquiesced in, such violations and problems.
E. If a grantee's proposal for renewal has been denied by a final
decision of the Borough made pursuant to this Section or if the grantee
has been adversely affected by a failure of the Borough to act in
accordance with the procedural requirements of this Section, the grantee
may seek review of such final decision or failure within 120 days
of the issuance of the decision either in the district court of the
United States for any judicial district in which the system is located
or in any State court of general jurisdiction having jurisdiction
of the parties. The court may grant appropriate relief if it finds
that any action of the Borough is not in compliance with the procedural
requirements of this Section or that the denial of the renewed proposal
by the Borough is not supported by a preponderance of the evidence
based on the record of the proceeding conducted under this Section.
F. Any decision of the Borough on a proposal for renewal shall not be
considered final unless all administrative review has occurred or
the opportunity therefor has lapsed.
G. Notwithstanding the provisions of this Section, a grantee may submit
a proposal for the renewal of a franchise at any time and the Borough
may, after affording the public adequate notice and opportunity for
comment, grant or deny such proposal at any time (including after
proceedings pursuant to this Section have commenced.) The provisions
of this Section shall not apply to a decision to grant or deny a proposal
under this subsection. The denial of a proposal for renewal pursuant
to this subsection shall not affect action on a renewal proposal that
is submitted in accordance with subsections (A) through (F) of this
Section.
H. If the current franchise expires by its own terms before the Borough
and the grantee have reached agreement on the terms and conditions
of a renewal franchise or before the completion of the formal renewal
procedures set forth in this Section, the Borough shall extend the
expiration date of the current franchise until either a new franchise
has been granted or the Borough's denial has been upheld by the
court of last resort.