[Adopted 1-15-2015 by Ord. No. 171]
For the purpose of this ordinance, the following words and phrases
shall have the meanings set forth in this section.
The governing body of the Township.
Title VI of the Communications Act of 1934, as amended, 47
U.S.C. § 521 et seq.
The one-way transmission to subscribers of video programming,
or other programming service; and subscriber interaction, if any,
which is required for the selection or use of such video programming
or other programming service. For the purposes of this definition,
"video programming" is programming provided by, or generally considered
comparable to programming provided by, a television broadcast station;
and "other programming service" is information that a cable operator
makes available to all subscribers generally.
The company's facility located within the Township,
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 a community.
Gans Communications, L.P., d/b/a MetroCast Communications
and its permitted successors.
The date of adoption of this ordinance by the Board of Supervisors.
Any reception, processing, distribution or transmission component
of the cable system, including cables, conduits, converters, splice
boxes, cabinets, manholes, vaults, poles, equipment, drains, surface
location markers, appurtenances, fiber, and related facilities maintained
by the company.
The Federal Communications Commission.
The rights granted to the company under this ordinance to
construct and operate the cable system and to provide cable services
and other services as permitted under applicable law.
All revenue derived by the company from the operation of
the cable system to provide cable services in the Township, less uncollected
bad debt and any franchise fees.
Any person, firm, partnership, association, corporation,
company, or other legal entity.
The surface of, and the space above and below, any public
street, road, highway, freeway, lane, alley, path, court, sidewalk,
parkway, or drive, or any easement or right-of-way now or later existing
within the Township.
Any person who lawfully receives cable service.
The term of this franchise as set forth in § 183-29.
The Township of Kidder, Pennsylvania.
A.
Grant of nonexclusive authority. The Township grants to the company
the right and privilege to construct, erect, operate, and maintain,
in, upon, along, across, above, over and under the streets, all facilities
necessary or desirable for the construction, maintenance, and operation
of the cable system. This franchise shall be nonexclusive, and the
Township may grant franchises to other persons. Any additional franchises
shall contain the same substantive terms and conditions as this franchise
and shall be competitively neutral and nondiscriminatory as compared
to this or any other franchise granted by the Township for the operation
of a cable system or other wireline multichannel video distribution
system. The company may use the cable system to deliver non-cable
services as permitted by applicable law.
B.
State franchise. If the Commonwealth of Pennsylvania adopts a state-issued
cable franchise, the company may replace this franchise with a state
franchise as provided under the authorizing statute.
C.
Rules of company. The company may promulgate rules, regulations,
terms and conditions governing its business and services as reasonably
necessary to enable the company to exercise its rights and perform
its obligation under this ordinance.
The term of the nonexclusive franchise granted under this ordinance
commences upon the effective date and shall continue for 10 years,
unless renewed, revoked or terminated sooner. So long as the company
remains in material compliance with the provisions of this ordinance,
the company, at its option, may extend the term for an additional
10 years by providing written notice to the Township no more than
24 months but not less than 12 months before expiration of the initial
term, provided that such a renewal of this franchise is specifically
conditioned upon a review and approval by the Board of Supervisors
at a public proceeding affording due process of the company's
qualifications and performance, the adequacy of the franchise provisions
and its consistency with the rules and regulations of the FCC. The
parties agree that any proceedings undertaken by the Township that
relate to the renewal of the franchise shall be governed by and comply
with the provisions of Section 626[1] of the Cable Act.
[1]
Editor's Note: See 47 U.S.C. § 546.
A.
Location of facilities. The company shall locate all facilities so
as to minimize interference with the use of the streets and with the
rights and reasonable convenience of adjacent property owners.
B.
Construction codes and permits. The company shall obtain all necessary
permits and shall comply with all ordinances of general applicability
before commencing any construction, upgrade or extension of the cable
system, including the opening or disturbance of any street.
C.
Repair of streets and property. The company, at its expense, shall
promptly restore any street or public property damaged by the company
during the construction, repair, maintenance or reconstruction of
the cable system.
D.
Public projects. After reasonable prior notice, the company, at its
expense, shall relocate its facilities as required by the Township
due to traffic conditions, emergency, public safety, street construction,
or other public improvements by the Township. In requiring the company
to protect, support, temporarily disconnect, relocate or remove any
portion of its property, the Township shall treat the company the
same as, and require no more of the company, than any other similarly
situated utility. The company shall have the right to seek reimbursement
from the Township, under any applicable insurance or government program
for reimbursement.
E.
Building movement. Upon request of any person holding a moving permit
issued by the Township and after reasonable prior notice, the company
shall temporarily move its facilities to permit the moving of buildings.
The company may require the requesting person to pay all costs related
to the temporary relocation of facilities, and may require payment
in advance.
F.
Tree trimming. The company may trim any trees in or overhanging the
streets, alleys, sidewalks, or public easements of the Township as
necessary to protect the company's facilities or to provide access
to the company's facilities for emergency equipment.
A.
Technical standards. The company shall operate the cable system in
compliance with all applicable technical standards promulgated by
the FCC.
B.
Safety requirements. The company shall employ ordinary care and shall
maintain in use commonly accepted methods and devices to reduce failures
and accidents.
C.
System maps. Upon request by the Township, the company shall make
available to Township representatives for review at the company's
office up-to-date as-built maps showing locations of all facilities
in the streets.
D.
System maintenance. When feasible, the company shall schedule cable
system maintenance to minimize service interruptions.
The company shall provide cable services without discrimination
to all persons residing within 300 aerial feet or 150 underground
feet of the cable system who request cable services and who comply
with the company's terms and conditions of service. The company
shall extend the cable system to contiguous areas of the Township
not currently served by the cable system when any such area reaches
a household density equal to or greater than 30 households per cable
mile. The company is generally not obligated to extend service to
residences beyond 300 aerial feet or 150 underground feet from the
company's facilities. Isolated residences requiring more than
a standard three-hundred-foot aerial drop or one-hundred-fifty-foot
underground line may be provided at a premium installation rate if
such service has been requested by the resident. The company may request
advanced payment for such installation.
The company shall provide upon request and free of charge one
service drop and basic and expanded basic cable service to the public
schools, emergency services, and municipal buildings listed on Schedule
A.[1]
[1]
Editor's Note: Schedule A is included as an attachment
to this chapter.
A.
Subscriber inquiries. The company shall have a publicly listed toll-free
telephone number and be operated so as to receive subscriber complaints
and requests during normal business hours. The company shall investigate
and promptly resolve customer complaints regarding quality of service
or service outages.
B.
Changes to rates or cable services. The company shall provide subscribers
and the Township with notice of changes to cable services or rates
in accordance with FCC rules and regulations.
The company shall pay to the Township an annual franchisee fee
in an amount equal to 5% of gross revenues. For each year, the company
shall deliver the payment to the Township within 30 days after December
31. The franchise fee shall be prorated for any partial year. Following
reasonable prior notice, the Township may inspect the company's
books, records, and reports to verify franchise fee calculations and
payments.
A.
Insurance.
(1)
During the term, the company shall maintain a comprehensive
general liability insurance policy with the following minimum coverage
limits:
(2)
The company shall name the Township as a certificate holder
and provide the Township with a certificate of insurance.
(3)
Each of the foregoing insurance policies shall contain a statement
that the insurer will not cancel the policy or fail to renew the policy
for any reason without first giving notice in accordance with the
terms of the policy. In addition, in the event that the insurer does
not provide such notice directly to the Township, the company agrees
to provide the Township with as much advance written notice as is
reasonably practicable in the event that any such insurer provides
the company with notice that it intends to cancel the policy or fail
to renew the policy for any reason.
B.
Indemnification. During the term, the company shall indemnify and
hold harmless the Township, its officers, agents and employees ("indemnitees")
from and against any claims, liabilities, damages, losses, and expenses
(including, without limitation, reasonable attorney fees) ("losses"),
which may arise out of the company's construction, installation,
operation or maintenance of the cable system, unless such losses arise
from the negligence or intentional misconduct of the Township, its
officers, agents or employees.
The company shall not transfer or assign its rights granted
under this ordinance without providing prior written notice to the
Township. Prior notice shall not be required for the following:
The Township and company may extend the term by mutual agreement,
and the existing terms and conditions of this ordinance shall govern
the extended term.
The Township may terminate the franchise granted under this
ordinance in case of material noncompliance by the company. Material
noncompliance shall include:
A.
A material violation by the company of any term, condition, or provision
of this ordinance that remains uncured within the applicable cure
period;
B.
Failure of the company to comply with any reasonable, material provision
of any applicable ordinance;
C.
The company becomes insolvent, unable or unwilling to pay its debts,
or is adjudged bankrupt, or there is a notice of prospective foreclosure
or other judicial sale of all or a substantial part of the cable system;
D.
The company abandons the cable system; or
E.
The company fails to operate the cable system for a period of 30
days.
If the Township seeks to terminate the franchise under § 183-39,
the Township shall follow the procedures in this section.
A.
Notice of complaint. The Township shall provide the company with
written notice describing with reasonable specificity the alleged
noncompliance.
B.
Opportunity to cure. The company shall have 60 days from receipt
of written notice to cure the alleged noncompliance. If the company
cures the alleged noncompliance within the sixty-day period, the Township
shall provide the company with written notice withdrawing the complaint.
C.
Public hearing. If the company fails to cure the alleged noncompliance
within the sixty-day cure period, or if the company provides the Township
with written notice disputing the complaint, and the parties fail
to otherwise resolve the matter, the Township shall schedule a public
hearing on the alleged noncompliance. At the public hearing, the company
may present testimony, cross-examine witnesses and deliver to the
Board of Supervisors all evidence relevant to the company's defense.
At the conclusion of the public hearing, the Board of Supervisors
may dismiss the complaint, defer action, order appropriate sanctions,
or terminate the franchise in accordance with this section.
D.
Termination. The Township may, after a duly noticed public hearing,
terminate the franchise for material and willful continuing noncompliance
by the company. If the company contests the termination in a court
of competent jurisdiction, the company may operate the cable system
in accordance with this ordinance while the case is pending.
E.
Removal of facilities. Upon expiration or termination of the franchise,
the company shall be afforded a six-month period to sell or otherwise
dispose of the cable system. During the six-month period, the company
shall operate the cable system in accordance with this ordinance.
At the expiration of the six-month period, the company has the right
to remove its facilities within a reasonable time.
A.
It shall be unlawful for any person without the company's consent
to willfully tamper with, remove or injure any of the company's
facilities.
B.
It shall be unlawful for any person to make or use any unauthorized
connection to any part of the company's cable system.
C.
Any person that violates this section regarding theft of service
shall be guilty of a misdemeanor and punished by a fine not to exceed
$500 for each occurrence or imprisonment for a term not to exceed
90 days or both such fine and imprisonment as may be imposed by a
court of competent jurisdiction.
Notices under this ordinance shall be in writing and shall be
deemed given delivery by hand delivery, certified mail return receipt
requested, or overnight courier to the following addresses:
A.
To the Township:
|
Kidder Township
State Route 1003
P.O. Box 576
Lake Harmony, PA 18624
Attn: Township Manager
|
B.
To the company:
|
Gans Communications, L.P., d/b/a MetroCast Communications
911 Market Street
Berwick, PA 18603
Attn: General Manager
|
C.
With copy to:
|
Gans Communications, L.P. d/b/a MetroCast Communications
70 East Lancaster Avenue
Frazer, PA 19355
Attn: General Counsel
|
D.
A party may designate other addresses for providing notice by providing
notice in writing of such addresses.
A.
Severability. If any provision of this ordinance is for any reason
held illegal, invalid, or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the
validity of the remaining provisions of this ordinance. The invalidity
of any portions of this ordinance shall not abate, reduce, or otherwise
affect any consideration or other obligation required by the company
under the remaining provisions of this ordinance.
B.
Complete agreement. All ordinances and parts of ordinances in conflict
with this ordinance are repealed as of the effective date of this
ordinance, excluding all public utility franchises granted to public
utilities (including utilities regulated by the Pennsylvania Public
Utility Commission).
C.
Force majeure. The company shall not be held in default under, or
in noncompliance with, the provisions of this ordinance, nor suffer
any enforcement or penalty relating to noncompliance or default, where
such noncompliance or alleged defaults occurred or were caused by
circumstances reasonably beyond the ability of the company to anticipate
and control. This provision includes work delays caused by waiting
for utility providers to service or monitor utility poles to which
the company's cable system is attached, as well as unavailability
of materials and/or qualified labor to perform the work necessary.
Furthermore, the parties hereby agree that it is not the Township's
intention to subject the company to penalties, fines, forfeitures
or revocation of the franchise for violations of the agreement where
the violation was a good faith error that resulted in no or minimal
negative impact on the subscribers, or where strict performance would
result in practical difficulties and hardship to the company which
outweigh the benefit to be derived by the Township.
D.
Entire agreement. This agreement constitutes the entire agreement
between the company and the Township. Amendments to this agreement
shall be mutually agreed to in writing by the parties, unless otherwise
expressly provided herein.
E.
Governing law. This agreement and the rights of the parties under
it will be governed by and construed in all respects in accordance
with the laws of the Commonwealth of Pennsylvania without regard to
principles of conflicts of law.
This ordinance shall become effective upon adoption by the Township
and acceptance by the company. The company shall notify the Township
of the company's acceptance of this ordinance within 30 days
of receipt of notice of adoption by the Township. The Township may
revoke this ordinance if the company fails to provide timely notice
of acceptance by providing notice to the company within 30 days after
such failure.
