A.
Title. This chapter shall be known and may be cited as the "West
Grove Cable Television Franchise Ordinance."
B.
Authority. This chapter regulates cable television pursuant to:
(1)
The
Borough's power to regulate telephone, telegraph and electric power
poles and/or other obstructions erected upon or in the Borough's
streets, roads and/or rights-of-way;
(2)
The
Borough's general police powers;
(3)
The
Borough Code; and
(4)
Pursuant
to federal law, which permits local franchising authorities to regulate
cable television, subject to certain substantive and procedural limitations.
C.
Conflict with federal law. It is the intent of the Borough that this
chapter conform to the federal law. If a court of competent jurisdiction
holds, by its final order, any provision of this chapter to be in
conflict with the federal law, the federal law will control and this
chapter, to the extent that any provision is so held to be in conflict
with the federal law, shall not apply.
D.
Interpretation. This chapter shall be construed broadly to promote
the maintenance of peace, good government and public health, safety
and general welfare.
E.
Severability. It is the Borough's intention that, if the final
order of a court of competent jurisdiction holds any provisions of
this chapter to be invalid or ineffective, in whole or in part, the
effect of such decision shall be limited to those provisions which
are expressly stated in the decision to be invalid or ineffective,
and all other provisions of this chapter shall continue to have full
effect. In the event of a subsequent change in applicable law so that
the provision which had been held invalid is no longer invalid, said
provision shall thereupon return to full force and effect without
further action by the Borough and shall thereafter be binding on franchisee
and the Borough.
F.
Amendment and repealer. All other Borough ordinances and regulations
are repealed to the extent inconsistent herewith. All franchise agreements
between the Borough and any cable operator are abrogated to the extent,
and only to the extent, inconsistent herewith, except to the extent
abrogation is not required or authorized by federal law.
G.
Effective date. This chapter shall become effective on July 7, 1995.
For purposes of this chapter, the following terms shall have the meaning indicated, unless otherwise expressly stated or the context clearly indicates otherwise. When not inconsistent with the text, words used in the present tense include the further tense; words in the plural include the singular and words in the singular include the plural. Unless otherwise expressly stated, words not defined in this section shall be given the meaning set forth in Title 47 of United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. § 521 et seq., as amended, and, if not defined therein, their common and ordinary meaning.
Any channel on a cable system set aside by the franchisee
for public, educational, and/or governmental use.
Any person who owns or controls, is owned or controlled by,
or is under common ownership or control with the franchisee.
All equipment in a cable subscriber's home that is used
to receive the basic service, regardless of whether such equipment
is additionally used to receive other tiers of regulated programming
service and/or unregulated service. Equipment shall include, but not
be limited to:
Any service tier that includes the retransmission of local
broadcast signals.
The rate charged by a cable operator for basic service and
associated equipment costs.
The Borough of West Grove, Pennsylvania, as represented by
the Borough Council.
The Pennsylvania Borough Code.[1]
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended from time to time.
Any person or group of persons:
A facility consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable television service which includes
video programming and which is provided to multiple subscribers within
the Borough, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves only subscribers in one or more multiple
unit dwellings under common ownership, control, or management, unless
such facility or facilities use any public right-of-way, including
streets or easements;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Cable Act, except that
such facility shall be considered a cable system to the extent such
facility is used in the transmission of video programming, whether
on a common carrier or non-common carrier basis, directly to subscribers;
or
Any facilities of any electric utility used solely for operating
its electric utility systems.
Borough Council.
Any channel on a cable system set aside by the franchisee
for noncommercial educational use.
The Federal Communication Commission, its designee, or any
successor governmental entity thereto.
The Federal Cable Communications Policy Act of 1984, as amended
by the Cable Television Consumer Protection and Competition Act of
1992 and all regulations promulgated by the FCC thereunder, as any
of the foregoing may be amended from time to time.
The nonexclusive rights granted in accordance with this chapter
to construct, operate, and maintain a cable system along the public
rights-of-way within all or a specified area of the Borough. No such
authorizations include license or permit to system for the provision
of non-cable services; nor mean nor include any license or permit
required for the privilege of transacting and carrying on a business
within the Borough as required by the ordinances and laws of the Borough,
or for excavating or performing other work in or along public rights-of-way.
The area of the Borough that the franchisee is authorized
to serve by its franchise.
The natural person(s), partnership(s), domestic or foreign
corporation(s), association(s), joint venture(s), or organization(s)
of any kind which have been granted a cable television franchise by
the Borough.
Any channel on a cable system set aside by the franchisee
for noncommercial government access use.
Any and all cash, credits, property or other consideration
of any kind or nature received annually directly or indirectly by
the franchisee, its affiliates, or any person in which the franchisee
has a financial interest, or by any other entity that is a cable operator
of the system arising from, attributable to, or in any way derived
from the provision by the franchisee of cable service, including the
studios and other facilities associated therewith. Gross annual revenues
include, but are not limited to, monthly fees charged subscribers
for any basic, optional, premium, per-channel, or per-program service;
installation, disconnection, reconnection, and change-in-service fees;
leased channel fees; late fees and administrative fees; fees, payments,
or other consideration received from programmers for carriage of programming
on the system; revenues from converter rentals or sales; studio rental,
production equipment, and personnel fees; advertising revenues; barter;
revenues from program guides; and revenues from home shopping and
bank-at-home channels. Borough may require that gross annual revenues
also includes revenues from the sale or carriage of non-cable services,
including information services. Gross annual revenue shall be the
basis for computing the franchise fee under this chapter. Gross annual
revenues shall not include any taxes on services furnished by the
franchisee which are imposed directly on any subscriber or user by
the state, Borough, or other governmental unit and which are collected
by the franchisee on behalf of said governmental unit, nor shall it
include revenue derived from the sale or rental of real property interests
of franchisee.
The minimum customer service standards established by the
FCC pursuant to federal law.
Refers to programming, the primary purpose of which is not
to propose a sale or barter of a commercial product or service. The
term expressly does not refer to programming the cost of which is
underwritten by one or more commercial or noncommercial programmers,
even where the underwriting is acknowledged as part of the program.
An individual, partnership, association, joint stock company,
organization, corporation, or any lawful successor thereto or transferee
thereof.
Any channel on a cable system set aside by the franchisee
for noncommercial use by the general public or noncommercial organizations,
and which is available for such use on a nondiscriminatory basis.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway,
easement or similar property in which the Borough now or hereafter
holds any property interest, which, consistent with the purposes for
which it was dedicated, may be used for the purpose of installing
and maintaining a cable system. No reference herein to a "public right-of-way"
shall be deemed to be a representation or guarantee by the Borough
that its interest or other right to control the use of such property
is sufficient to permit its use for such purposes, and a franchisee
shall be deemed to gain only those rights to use as are properly in
the Borough and as the Borough may have the undisputed right and power
to give.
Any sale, exchange, or barter transaction.
A category of cable service provided by the franchisee and
for which a separate charge is made by the franchisee.
The surface of and the space above or below any public street,
public roadway, public highway, public freeway, public lane, public
way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or public right-of-way
now or hereafter held by the Borough which shall entitle franchisee
to the use thereof for the purposes of installing over poles which
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments, and other property as may be ordinarily necessary
and appurtenant to the operation of the system.
Any person who legally receives cable service and non-cable
service, with the exception of telephone-like services, whether or
not a fee is paid for such service.
Cable system equipment used by the franchisee to provide
service in the franchise area.
Any transaction in which: (1) an ownership or other interest
in the franchisee, its cable system, or any person that is a cable
operator of the cable system is transferred from one person or group
of persons to another person or group of persons so that control of
the franchisee is transferred; or (2) the rights and/or obligations
held by the franchisee under a franchise are transferred or assigned
to another person or group of persons. Unless otherwise specified,
control for these purposes means working control, in whatever manner
exercised. Unless otherwise specified, the addition, deletion, or
other change of any general partner of the franchisee, any person
who owns or controls the franchisees, or a cable operator of the cable
system is such a change of control.
A person or organization utilizing a channel or equipment
and facilities for purposes of producing and/or transmitting material,
as contrasted with the receipt thereof in the capacity of a subscriber.
[1]
Editor's Note: See 8 Pa.C.S.A. § 101 et seq.
