For the purpose of this ordinance, the following words and phrases
shall have the meanings set forth in this section.
CABLE ACT
Title VI of the Communications Act of 1934, as amended, 47
U.S.C. § 521 et seq.
CABLE SERVICE
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.
CABLE SYSTEM
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.
COMPANY
Gans Communications, L.P., d/b/a MetroCast Communications
and its permitted successors.
EFFECTIVE DATE
The date of adoption of this ordinance by the Board of Supervisors.
FACILITIES
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.
FCC
The Federal Communications Commission.
FRANCHISE
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.
GROSS REVENUES
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.
PERSON
Any person, firm, partnership, association, corporation,
company, or other legal entity.
STREET
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.
SUBSCRIBER
Any person who lawfully receives cable service.
TERM
The term of this franchise as set forth in § 183-29.
TOWNSHIP
The Township of Kidder, Pennsylvania.
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 of the Cable Act.
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.
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.
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:
A. The assignment of, or the granting of a security interest in, the
franchise or the cable system for the purpose of securing indebtedness;
or
B. The assignment or transfer of the franchise or the cable system to
an affiliate under common ownership or control with the company.
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.
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:
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Kidder Township
State Route 1003
P.O. Box 576
Lake Harmony, PA 18624
Attn: Township Manager
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B. To the company:
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Gans Communications, L.P., d/b/a MetroCast Communications
911 Market Street
Berwick, PA 18603
Attn: General Manager
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C. With copy to:
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Gans Communications, L.P. d/b/a MetroCast Communications
70 East Lancaster Avenue
Frazer, PA 19355
Attn: General Counsel
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D. A party may designate other addresses for providing notice by providing
notice in writing of such addresses.
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.