[Adopted 7-5-2001 by Ord.
No. 236]
For the purposes of this Part, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular
number, and the words in a singular number include the plural number.
The word "shall" is always mandatory and not merely directory.
Video programming or cable services for which an additional
charge is required of a subscriber beyond the charge for basic service
tier and cable programming tier services including, but not limited
to, pay-per-view movies and concerts, variety acts and sporting events,
pay-per-piew programs and interactive services.
Each person who falls into one or more of the following categories:
each person having, directly or indirectly, control or a controlling
interest in franchisee; each person in which franchisee has, directly
or indirectly, control or a controlling interest; each office, director,
general partner, joint venture or joint venture partner of franchisee;
and each person directly or indirectly controlling, controlled by
or otherwise related to franchisee by common ownership, common management
or common control.
A separately available basic service tier to which subscription
is required for access to any other tier of service. Such basic service
tier shall, at a minimum, consist of the following: all signals carried
in fulfillment of the Cable Act, any public, educational, and governmental
access programming required in this Part or the franchise agreement;
and any signal of any television broadcast station that is provided
by the cable operator to any subscriber, except a signal which is
secondarily transmitted by a satellite carrier beyond the local service
area of such station. Additional signals may be added to the basic
tier by franchisee.
The Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1996, and the Telecommunications
Act of 1996, codified at 47 U.S.C § 521 et seq., as it may
be amended or succeeded.
The Board established to act as an advisory body to the Township
Boards of Supervisors of Wrightstown Township and Upper Makefield
Township on matters pertaining to cable television.
Public, educational, and governmental programming carried
on a cable television system not under the exclusive control of the
cable operator.
Also referred to as "system," means 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 a community, 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 without using any public
rights-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provision of Title 11 of the Cable Act, except that
such facility shall be considered a cable television system to the
extent such facility is used in the transmission of video programming
directly to subscribers; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
A portion of the electromagnetic frequency spectrum (or any
other means of transmission including, but not limited to, optical
fibers) which is discretely identified and capable of carrying full
motion color video, mono or stereo audio, and may include other non-video
subcarriers and digital information.
The Commonwealth of Pennsylvania.
Any written communication by any person or any oral communication
by a subscriber or potential subscriber reduced to writing, including
to a computer form, expressing dissatisfaction with any nonprogramming
aspect of franchisee's business or operation of the cable television
system.
Calendar days unless otherwise specified.
A coaxial connection from the activated feeder cable of the
cable television system to the subscriber's demarcation point as specified
by the FCC.
Any channel provided by franchisee, which is designated by
the Township for educational use, consistent with the Cable Act.
The federal administrative agency, or its lawful successor,
authorized to regulate and oversee telecommunications carriers, services
and providers on a national level.
An initial authorization, extension or renewal thereof, including
authorization granted under the Cable Act, by the Township providing
for the nonexclusive and revocable right to construct, operate and/or
maintain a cable television system along any public right-of-way and/or
to provide cable service within the franchise area. However, any such
authorization, in whatever form granted, shall not include any license
or permit required for the privilege of transacting or carrying on
business within the Township, and franchisee is required to comply
with all applicable provisions of Township ordinances including, but
not limited to, zoning and subdivision and land development ordinances.
The entire corporate limits of the Township, or portions
thereof, as said areas are specifically described in the franchise
agreement, and any area annexed by the Township during the term of
the franchise agreement.
The percentage, as specified herein, of franchisee's gross
revenues paid to the Township in exchange for the rights granted pursuant
to this Part.
Any person or persons who have been legally granted a franchise
by the Township and shall include the lawful successors, transferees
or assignees of such franchisee(s) which have been approved by the
Township.
Any channel provided by franchisee which is designated by
the Township for government use, consistent with the Cable Act.
All amounts, in whatever form and from all sources, earned
either by franchisee from the operation of franchisee's cable television
system within the Township, or by any affiliated entity, only to the
extent such amounts are earned from the operation of franchisee's
cable television system within the Township. "Gross revenues" shall
include, without limitation, amounts for the basic service tier, cable
programming service tiers, pay services, audio services, subscriber
installations and transactions, leased access, advertising, equipment
rentals and all other revenues derived from the operation of franchisee's
cable television system. Revenues which are not directly attributable
to specific subscribers, such as advertising revenue and home shopping
commissions, shall be allocated to cable television systems and jurisdictions
on a per-subscriber basis measured in a consistent manner from period
to period.
"Gross revenues" shall also include amounts earned during any
period, regardless of whether:
The amounts are paid in cash, in trade or by means of some other
benefit to franchisee or any affiliated entity;
The goods or services with which the revenue is associated are
provided at cost or the revenue amount can be matched against an equivalent
expenditure; and
The amounts are initially recorded by franchisee or an affiliated
entity.
"Gross revenues," however, shall not be double counted. Revenues
of both franchisee and an affiliated entity that represent a transfer
of funds between franchisee and the affiliated entity, and that would
otherwise constitute gross revenues of both franchisee and the affiliated
entity, shall be counted only once for purposes of determining gross
revenues. Gross revenues shall not include sales or other similar
taxes imposed by law on subscribers which franchisee is obligated
to collect.
The connection of the cable television system from feeder
cable to subscriber's terminal(s).
Any and all applicable federal, commonwealth and local laws
and regulations promulgated thereunder.
A nonaffiliated third party leasing a cable channel for the
presentation and distribution of local nonoperator video/audio programs
or other video/audio communications over a cable channel for a specified
fee.
A cable channel leased by the franchisee to a nonaffiliated
third party to permit presentation and distribution of local nonoperator
video/audio programming or other video/audio communications to subscribers
for a specified fee paid to the franchisee.
Programming, exclusive of broadcast signals, carried on a
cable television system over one or more channels, and subject to
the control of the cable operator.
Refers to any channel or a facility consisting of a set of
transmission paths and associated signal generation, reception, and
control equipment that is designed to provide cable television service,
which includes video programming, which is provided to multiple subscribers
within a community, and which the Federal Communications Commission
or its successor has certified as compliant with Part 76 of the Rules
of the Federal Communications Commission, 47 CFR Part 76, as amended
from time to time.
Any individual, firm, partnership, association, corporation,
company or organization of any kind.
A linear mile of strand-bearing cable placed along the rights-of-way.
Any channel provided by franchisee to the Township which
is designated by the Township for use by the general public organizations,
consistent with the Cable Act.
The surface, the air space above the surface, and the area
below the surface of any highway, street, alley, sidewalk, bridge,
and/or tunnel which the Township has the right to grant the use of,
or any other public right-of-way which is located within the Township.
No reference herein, or in any permit, to the public right-of-way
shall be deemed to be a representation or guarantee by the Township
that its title to any property is sufficient to permit its use for
such purpose, and franchisee shall be deemed to gain only such rights
to use property in the Township as the Township may have the undisputed
right and power to give. Notwithstanding the foregoing, the term "public
right-of-way" shall not include any public property except the rights-of-way
described herein.
Any person residing in the Township.
A subscriber who lawfully receives a service in an individual
dwelling unit where the service is not to be utilized in connection
with a business, trade or profession.
Includes any sale, exchange, barter or similar transaction.
Any public or private educational institution including primary
and secondary schools (K-12).
A purchaser of any service delivered over the cable television
system and includes those persons who are not required to pay a fee
because of their exemption from fees by this Part or through agreements
with franchisee.
The cable television system constructed for use within the
Township including, without limitation, the head end, antenna, cables,
wires, lines, towers, amplifiers, converters, property security systems,
equipment or facilities located within the corporate limits of the
Township designed, constructed or wired for the purpose of producing,
receiving, amplifying and distributing by coaxial cable, fiber optics,
microwave or other means, audio, radio, television and electronic
signals to and from subscribers in the Township, and any other equipment
or facilities located within the corporate limits of the Township
intended for the use of the cable television system; provided, however,
such cable television system facilities excludes buildings, facilities,
or equipment whose sole use is to provide service to any cable television
system facilities located outside the Township limits.
The Township of Upper Makefield, Bucks County, Pennsylvania.
The major distribution cable used in the cable television
system, which divides into feeder lines which are tapped for service
to subscribers.
A person utilizing a cable television system channel for
purposes of production and/or transmission of material, as contrasted
with receipt thereof in a subscriber capacity.
A.
Grant. Upon careful consideration of the qualifications of the applicants
and in consideration of the faithful performance and observation of
the conditions and reservations herein specified, Upper Makefield
Township may grant revocable and nonexclusive franchises for the right,
privilege, authority and easement to erect, construct, operate and
maintain, in upon, along, across, above, over and under the public
right-of-way now laid out and dedicated and all such extensions thereof
and additions thereto in the Township, and public utility rights-of-way
and easements, to the extent the Township is empowered to grant such
rights with respect thereto; all poles, wires, cables, underground
conduits, manholes and other television conductors and fixtures necessary
for the maintenance and operation of a cable television system, hereinafter
sometimes referred to as a cable television system and/or, systems,
solely for the provision of cable television services, on the terms
and conditions hereinafter set forth. The Township expressly reserves
the right to grant similar use of said public rights-of-way to any
person at any time during the period of the franchise agreement(s).
B.
Open video system. Any franchise granted for an open video system
shall comply with all sections of this Part, unless precluded from
compliance with specific sections by federal or commonwealth law,
rule, or regulation.
C.
Other rights-of-way use. No grant of any franchise shall affect the
right of the Township to grant to any other person a right to occupy
or use the public right-of-way, or portions thereof, for the construction
and operation of a cable television system within the Township or
the right of the Township to permit the use of the public right-of-way
of the Township for any purpose whatever. By accepting a franchise,
franchisee acknowledges the Township's right to make such grants and
permit such uses.
D.
Event of conflict. In the event of conflict between the terms and
conditions of this Part and the franchise agreement, this Part shall
control.
E.
General Township ordinances. Any franchise granted by the Township
is hereby made subject to the general ordinance provisions now in
effect and hereafter made effective. Nothing in the franchise agreement
shall be deemed to waive the requirements of the various codes and
ordinances of the Township regarding permits, taxes, and fees to be
paid, or manner of construction. All provisions of this Part are to
be applied to both new construction and modification of existing cable
television systems for upgrading and major repair or replacement.
G.
Rights reserved. Nothing in this Part or the franchise agreement
shall limit any right the Township may have under applicable federal,
state and local law.
H.
Time is of the essence to this Part. Whenever this Part or the franchise
agreement shall set forth any time for any act to be performed by
or on behalf of franchisee, such time shall be deemed to be of the
essence and any failure of franchisee to perform within the time allotted
shall always be sufficient grounds for the Township to invoke an appropriate
penalty.
I.
No waiver of rights. No course of dealing between franchisee and
the Township nor any delay on the part of the Township in exercising
any rights hereunder shall operate as a waiver of any such rights
of the Township or acquiescence in the actions of franchisee in contravention
of rights except to the extent expressly waived by the Township or
expressly provided for in the franchise agreement.
No cable television system, open video system, or person providing
cable service may operate within the Township or occupy or use any
public right-of-way without a cable television franchise granted by
the Township. All cable franchises in the Township shall be subject
to this Part. The term of the franchise agreement shall commence upon
execution of a franchise by the Township and franchisee and shall
continue for the period specified in the franchise agreement, unless
sooner terminated as provided for herein or the franchise agreement.
A franchise granted pursuant to this Part shall mean the entire
corporate limits of the Township, or portions thereof, as said areas
are specifically described in the franchise agreement, and any area
annexed by the Township during the term of the franchise agreement.
A.
Noninterference. Franchisee's rights and privileges shall be subordinated
to any prior lawful use or occupancy of the public right-of-way or
other public property and shall not be so used as to interfere with
existing improvements or with new improvements the Township may deem
proper to make, or as to hinder or obstruct the free use of the public
right-of-way or other public property. In the event any equipment
or facilities of franchisee shall interfere with any such improvement
existing or intended to be made by the Township, franchisee shall,
upon notice from the Township, forthwith relocate said equipment and
facilities at franchisee's expense so as to eliminate said interference.
B.
Permit required. Franchisee shall not open or disturb the surface
of any public right-of-way for any purpose without first having obtained
a permit to do so in accordance with Township requirements.
C.
Poles. Nothing in this Part or any franchise granted hereunder shall
authorize franchisee to erect and maintain new poles where existing
poles are servicing the area, franchisee shall obtain permission from
the appropriate Township officials before erecting any new poles or
underground conduit. Any poles or other fixtures placed in any public
right-of-way by franchisee shall be placed in such a manner as to
not interfere with travel on such public right-of-way.
D.
Restoration of public right-of-way, sidewalks, and pavement. In case
of disturbance of any public right-of-way, sidewalk or paved area,
franchisee shall, at its own cost and expense and in a manner in accordance
with Township ordinances and standards established by the Township
and approved by the Township Engineer, replace and restore such public
right-of-way, sidewalk or paved area to as good or better condition
than existed prior to the disturbance promptly, but in no more than
20 business days unless such additional time is specified by the Township.
The Township may order franchisee to restore the public right-of-way,
sidewalk, or pavement to a condition as good as or better than existed
prior to cable television system construction including any improvements
made to said public right-of-way subsequent to cable television system
construction. With regard to public property not in the public rights-of-way,
franchisee shall restore such property to a condition as good or better
than existed prior to cable television system construction, including
any improvement made to such property subsequent to cable television
system construction. Restoration of public right-of-way and public
property not in the public right-of-way shall be approved by the Township
Engineer. Costs for the Township Engineer review and restoration of
pubic right-of-way, sidewalks, pavement and public property not in
the public right-of-way by shall be borne by franchisee in the same
manner as such costs are borne in standard development agreements.
In the event that franchisee and its contractors and subcontractors
fail to make such repair within the time specified by the Township,
the Township shall be entitled to complete the repair and franchisee
shall pay the costs of the Township for such repair.
E.
Building moves. Franchisee shall, upon the request of the Township,
move and replace its facilities to accommodate house moves conducted
on behalf of the Township, free of charge to the Township. Franchisee
shall temporarily raise or lower its wires to permit the moving of
a building or other structural changes at a reasonable fee within
14 days after receipt of a written request by any property owner or
person holding a permit issued by the Township.
F.
Maps. Franchisee shall at all times keep on file true and accurate
maps or plats of all existing and proposed aerial and underground
feeder lines, trunk lines and subtrunk lines and a list of educational
and municipal buildings to which special services are being provided,
which shall be made available to the Township, or the CAB for review,
upon request at the offices of the franchisee or at the Township building
as specified by the Township. Franchisee shall provide the Township
with a map of the location of all system facilities in the Township
and provide map updates to the Township as changes are made in the
location of system facilities. Upon request of the Township, franchisee
shall develop an AutoCAD 12, or if the franchisee has the capability,
a Geographical Information System (GIS) compatible layer, using the
program and format currently used by franchisee, which accurately
displays their "as-built" utility systems. All AutoCAD or GIS compatible
mapping including, but not limited to, all databases, plots and computer
disks will be updated at least quarterly and provided at no cost to
the Township and become the property of the Township.
G.
Codes. Construction and maintenance of the transmission distribution
system shall, at franchisee's expense, be in accordance with the provisions
of the National Electrical Code, latest edition, and National Electrical
Safety Code (latest edition), or any amendments or revisions thereof
and in compliance with any applicable rules, regulations or orders
now in effect or hereafter issued by any federal or commonwealth commission
or any other public authority (or utility) joint attachment practices.
Applicant should also comply with the provisions of Act 287 of the
Commonwealth of Pennsylvania (underground facilities)[1] and, upon request of the Township, submit proof of compliance
with said act prior to commencement of any construction.
[1]
Editor's Note: See 73 P.S. § 176 et seq.
H.
Construction standards. All installations of equipment shall be durable,
of a permanent nature and installed in accordance with current best
cable television system engineering practices. Franchisee, prior to
the commencement of work, shall provide the Township with the cable
television construction standards to be used in the construction and
installation of the cable television system, which construction standards
shall be in compliance with this Part, the franchise agreement, and
applicable building codes or Township ordinances. Franchisee shall
maintain up-to-date maps of all facilities in both public and private
property. Franchisee and any subcontractors shall comply with all
laws, rules, regulations and specifications heretofore or hereafter
enacted or established including, but not limited to, those concerning
street work, street excavation, use and removal and relocation of
property within a street.
I.
Placement. All cables and wires shall be installed parallel with
existing telephone and electric wires whenever possible. Multiple
cable configurations shall be arranged in parallel and bundled, in
accordance with engineering and safety considerations as mandated
by the National Electrical Code. All installations shall be underground
at the time of installation. In areas where either telephone or electric
utility facilities are above ground at the time of installation, franchisee
may install its service above ground with the understanding that at
such time as those facilities are required to be placed underground
by the Township, franchisee shall likewise place its service underground.
J.
Traffic safety. Franchisee shall comply with all Township, county
and commonwealth traffic requirements and Uniform Traffic Safety Code
regulations. Barricades or other barriers, such as signs, traffic
cones, red flags, and warning lights, shall be utilized at all work
sites frequented by the public until an area is cleared for normal
public use. Local law enforcement shall be contacted, when necessary,
to direct traffic. Before leaving a job site each day, franchisee's
employees and contractors shall be required to pick up all scrap materials
and ensure that any construction materials and tools are properly
stored and covered and that derricks, planks and ladders are removed
from or piled at the roadside in a manner that will not obstruct traffic
or create a safety hazard for pedestrians.
K.
Employee, subcontractor, and contractor bonds and insurance. Franchisee
shall have contractors and subcontractors bonded and insured for liability,
in a minimum amount of $1,000,000 determined by the Township Engineer,
prior to conducting work within the Township. All employees of franchisee,
who enter subscribers' homes in the course of their employment, shall
be bonded and insured for liability in a minimum amount of $1,000,000
for the term of the franchise agreement.
L.
Public works. If the grades or lines of any street within the franchise
area are changed at any time during the term of the franchise agreement,
then franchisee shall, at its own cost and expense and upon reasonable
written notification and request of the Township, protect or promptly
alter or relocate the cable television system, or any part thereof,
so as to conform with such new grades or lines. In the event that
franchisee refuses or neglects to so protect, alter, or relocate all
or part of the cable television system, following notice to do so,
the Township shall have the right to break through, remove, alter,
or relocate all or any part of the cable television system without
any liability to franchisee, any affiliated person or any other person,
and franchisee shall pay to the Township the documented costs incurred
in connection with such breaking through, removal, alteration, or
relocation.
M.
Protection of structures. In connection with the construction, operation,
maintenance, repair, upgrade, or removal of the cable television system,
franchisee shall, at its own cost and expense, protect any and all
existing structures belonging to the Township and all designated landmarks.
Franchisee shall obtain permits from the Township before altering
any water main, sewerage or drainage system, or any other municipal
structure. Any such alteration shall be made by franchisee, at its
sole cost and expense, and in any reasonable manner prescribed by
the Township. Franchisee agrees that it shall be liable, at its own
cost and expense, to replace or repair and restore to a condition
as good or better than existed previously, in any reasonable manner
as may be specified by the Township, any public right-of-way or any
municipal structure involved in the construction, operation, maintenance,
repair, upgrade or removal of the cable television system that may
become disturbed or damaged as a result of any work thereon by or
on behalf of franchisee pursuant to this Part or the franchise agreement.
N.
Service interruption. Franchisee shall use its best efforts to interrupt
the provision of service only with good cause and for the shortest
time possible. Franchisee shall use reasonable efforts to interrupt
service only between the hours of 12:00 midnight and 6:00 a.m.
O.
No burden on public right-of-way. Franchisee shall not erect, install,
construct, repair, replace or maintain its cable television system
in such a fashion as to unduly burden the present or future of the
public right-of-way. If the Township, in its reasonable judgment,
determines that a portion of the cable television system is an undue
burden, franchisee, at its expense, shall modify its cable television
system or take such other actions as the Township may determine is
in the public interest to remove or alleviate the burden, and franchisee
shall do so within the time period established by the Township.
P.
Restoration of private property. Franchisee shall restore at its
sole cost and expense, within 20 working days, or such additional
time as specified by the Township, in accordance with Township ordinances,
standards established by the Township and with approval of the Township
Engineer, any portion of the private property that is in any way disturbed
by the construction, operation, maintenance or repair of the cable
television system to as good or better condition than existed previously.
Costs for Township Engineer review and restoration of private property
shall be borne by franchisee in the same manner that such costs are
borne in standard development agreements. In addition, franchisee
shall, at its sole cost and expense, restore and replace any other
property, real or personal, disturbed, damaged or in any way injured
by or on account of franchisee or by its acts or omissions, in as
good or better condition as such property was in immediately prior
to the disturbance, damage or injury. In the event that franchisee
and its contractors and subcontractors fail to make such repair within
the time specified by the Township, the Township shall be entitled
to complete the repair, and franchisee shall pay the costs of the
Township for such repair.
Q.
Barriers. While any portion of the public right-of-way is open, franchisee
shall maintain reasonable barriers, lights at night and other warnings
to the users of the public right-of-way in compliance with applicable
government regulations requiring and pertaining to such barriers.
R.
Township maps. The Township does not guarantee the accuracy of any
maps showing the horizontal or vertical location of existing substructures.
In public rights-of-way, it shall be the franchisee's obligation to
verify the location or substructures in the public rights-of-way.
S.
Tree trimming. Franchisee shall have the authority under the supervision
of the appropriate authority of the Township and only after prior
approval thereof, to trim trees upon and overhanging public rights-of-way
and places within the Township so as to prevent the branches of such
trees from coming in contact with its wires and cable. All trimming
of trees on private property shall require notice to, and approval
from, the property owner.
T.
Trees, shrubs, and lawns. The following applies to trees, lawns,
or shrubs within the public right-of-way:
(1)
Trees or shrubs to be transplanted shall be transplanted in accordance
with the Township regulations. All damaged trees, shrubs or lawns
shall be replaced or restored as directed by the Township of Upper
Makefield. Such trees, shrubs, and lawns shall be warranted for 18
months.
U.
Easement usage. In using easements, franchisee shall comply with
all federal, commonwealth, and local laws and regulations governing
the construction, installation, operation, and maintenance of a cable
television system. Without limitation, franchisee shall ensure that:
(1)
The safety, functioning and appearance of the property and the convenience
and the safety of other persons not be adversely affected by the installation
or construction of facilities necessary for the cable television system.
(2)
The cost of the installation, construction, operation, or removal
of such facilities be borne by franchisee.
(3)
The owner of the property be justly compensated by franchisee for
any damages caused by the installation, construction, operation, or
removal of such facilities by franchisee.
V.
Emergency notification. Franchisee shall provide the Township with
a twenty-four-hour emergency telephone number at which a named responsible
adult representative of franchisee (not voice-mail or a recording)
can be reached in the event of an emergency.
W.
Removal of obsolete facilities/cooperation. When franchisee opens
a trench, accesses a conduit or boring, or is working on aerial locations,
it shall remove, if requested by the Township, all of franchisee's
obsolete and inactive cable television system facilities from such
locations.
(1)
When franchisee opens a trench or access to borings, it shall notify
all other franchisees and permittees 10 days in advance of such work
through Pennsylvania One-Call, so that they may remove their obsolete
and inactive facilities from such locations or add new facilities.
Franchisee shall cooperate with such persons in such activities.
(2)
When franchisee receives notification from another franchisee or
permitted that is opening a trench or access to borings, franchisee
shall remove all of its obsolete facilities from such location while
they are open.
X.
Preventative maintenance. Upon completion of construction, franchisee
shall institute and adhere to a preventive maintenance program, good
engineering practices and then-current industry practices.
Y.
Identification. For new facilities, franchisee shall identify its
cable television system and cable drops (by color code, stamping,
engraving, tags, stickers, or other appropriate method selected by
franchisee) so as to distinguish franchisee's cables from that of
all other cable operator(s), utilities, and service providers in the
authorized area.
Z.
Interior wiring. Subscribers (or the property owner, if different)
shall own all cable installed by franchisee after the effective date
of this Part which is located inside subscribers dwellings plus that
extending to 12 inches on the outside of the dwelling plus any such
further length of cable extending beyond the dwellings exteriors as
is required by law. Franchisee shall be excused from complying with
the requirements of the preceding sentence if another entity or entities
providing cable service in the Township by means of a cable television
system that is not subject to comparable requirements.
AA.
Township use of facilities. Franchisee shall permit without charge
the joint use of excess height, space and capacity in its poles, conduits
and facilities located in the public right-of-way by the Township
or other governmental entities, so long as such use does not interfere
with franchisee's cable television system.
BB.
Easements on Township property. Any easements over or under property
owned by the Township other than the public right-of-way shall be
separately negotiated with the Township and paid for by the franchisee.
CC.
Vacation. If a public right-of-way is vacated, eliminated, discontinued
or closed, all rights of franchisee under this Part to use same shall
terminate and franchisee, at its expense, shall immediately remove
the cable television system from such public right-of-way unless franchisee
obtains any necessary easements from the affected property owners
to use the former public right-of-way.
DD.
Subsurface installation marking. Franchisee shall participate in
and be a member of a "One-Call" notification program.
A.
Cable television system. Franchisee shall construct or upgrade the
cable television system in the franchise area as specified in the
franchise agreement. If necessary, franchisee shall submit applications
for issuance of the pole permits necessary to install the cable television
system to the appropriate utility companies within 120 days of the
effective date of the franchise agreement.
B.
Construction plan and approval. Franchisee shall obtain the approval
of the appropriate Township officials prior to commencing construction
in the public right-of-way. Franchisee shall submit to the Township
a construction plan showing the location, placement, dimensions, and
type of facilities of all construction proposed in the public rights-of-way
and also those areas not being served. Franchisee shall not begin
any construction, modification, addition, replacement, removal or
any change whatever in any Township facilities except ordinary and
necessary repairs, without having first obtained all permits required
by the Township. Franchisee shall give the Township appropriate written
notice of proposed construction at least 10 days prior to such construction.
C.
Interconnection. Franchisee shall interconnect with other systems
as specified in the franchise agreement.
A.
Emergency alert. Franchisee shall comply with the requirements of
the federal emergency alert system as specified by the FCC (47 CFR
Part 11.1 et seq.). Franchisee shall provide the Township with a local
alert system (LAS) which shall allow the Township to video crawl emergency
messages to all cable subscribers on all channels from two computers
via any touch-tone phone and an access code. Persons to be provided
with emergency messaging access shall be selected by the Township.
The Township requires that its government channel serve as the emergency
video feed. The Township may test the franchisee's local alert system
and shall consult with the franchisee when developing policies for
testing. Franchisee shall provide the software and hardware needed
to provide LAS as specified herein and provide training to the Township
on use of the LAS.
B.
Standby power. Franchisee shall maintain equipment providing standby
powering for an eight-hour period at the head end. Franchisee shall
provide battery backup power (or an electric generator) at all fiber
optic node locations on the cable television system where the loss
of electric power might disrupt the provision of service within the
Township such that the cable television system will operate all trunk
amplifiers and fiber nodes for at least 2.5 hours even if electric
service from conventional utility lines are interrupted. Franchisee
shall take all reasonable measures to insure reliable delivery of
signals throughout the Township.
C.
Two-way. The cable television system shall have active bidirectional
return communications without any technical modifications.
D.
Two-way deactivation. Every subscriber shall have the right to deactivate
the return path from the subscriber's receiver at franchisee's sole
cost.
A.
Performance standards. The performance and technical standards governing
construction, reconstruction, installation, operation, testing, use,
maintenance and dismantling of the cable television system provided
for herein shall be in accordance with all applicable Federal Communications
Commission and other federal, commonwealth and local laws and regulations;
provided, however, that the Township may require certain standards
be met by franchisee including, but not limited to, the following:
(1)
Produce a picture, whether in black and white or in color, that is
undistorted, free from ghost images and accompanied with proper sound
typical of production television receivers and, where digital services
are provided, produce an undistorted digital signal.
(2)
Transmit signals of adequate strength to produce clear pictures with
clear sound at all outlets without interfering with other electrical
or electronic systems or television reception.
(3)
Maintain at all times the technical standards, regulations and guidelines
as required by the Federal Communications Commission.
B.
Rebates. Franchisee, upon subscriber request, shall credit the subscriber's
account for a pro rata share of the monthly bill commensurate with
the period of time a subscriber experiences an outage of one channel
or more, beyond the first six hours. Franchisee shall also credit
a subscriber who has e-mailed or faxed the Township and the Township
has forwarded such notice to the franchisee.
C.
Performance testing. Franchisee shall conduct performance tests as
required by the Federal Communications Commission and the franchise
agreement. Such tests shall be conducted in the presence of Township
consultants if requested by the CAB. The results of such tests shall
be provided to the Township as specified in the franchise.
D.
Testing necessitated by subscriber complaints. Whenever requested
by the Township, franchisee shall test, analyze, and report on the
performance of its cable television system at specific sites within
the Township that the Township has identified as having service quality
problems. Franchisee shall take corrective action on any problems
found through the testing within 24 hours and shall use its best efforts
to correct the problem in 48 hours. The Township may require additional
tests; full or partial repeat tests, different test procedures, or
tests involving a specific subscriber's terminal. Reports on such
tests shall be delivered to the Township no later than 10 business
days after the Township notifies franchisee to perform the test(s).
The Township or its designees shall have the right to participate
in said testing. The report shall include the following information:
the nature of the complaints which precipitated the special tests;
what cable television system component was tested; the equipment used
and procedures employed in said testing; the results of such tests;
and the methods by which said complaints were resolved. Said tests
and analyses shall be conducted by a qualified technician who shall
sign all records of the special tests and forward same to the Township
with a report interpreting the results of the tests and recommending
what actions should be taken. If requested by the Township, franchisee
shall have a qualified engineer to review such test results. All such
tests shall be at the expense of franchisee.
A.
Basic service. Cable television basic service shall be made available
to substantially all individual dwellings, residences, institutions,
organizations and all other entities within the limits of the Township,
in accordance with the provisions of this Part and all laws governing
the rights of privacy.
B.
Installation and service fees. Installations and service fees shall be equal for all basic service subscribers. Installation or subscriber use of cable television service which involves the retransmission of the cable signal to multiple reception points via a privately owned closed-circuit-television distribution system shall be negotiated separately by franchisee and the subscriber, except as provided for in § 13-410C.
C.
Township ordinances. Cable, whether underground or aerial, shall
be in accordance with all applicable Township ordinances or regulations.
D.
Twenty-four-hour operation. The system shall be designed for reliable
operation 24 hours per day.
E.
Business office. Franchisee shall maintain an office within 10 miles
of the Township, which shall be open to the general public during
all usual business hours.
F.
Staff, telephones and complaints. Franchisee shall have a toll-free,
publicly listed telephone number. Franchisee's telephone system shall
have, at a minimum, enough incoming lines and adequate staff to process
incoming calls such that telephone answer time, including wait time
under normal operating conditions, shall not exceed 30 seconds when
the connection is made. If the call needs to be transferred, transfer
time shall not exceed 30 seconds under normal operating conditions.
Subscribers shall receive a busy signal less than 3% of the time.
Franchisee shall have an e-mail address for receiving consumer complaints
and other communications. Franchisee shall maintain a twenty-four-hour
customer service staff in order to receive customer complaints.
G.
Complaints to Township. Any subscriber who has a complaint regarding
the quality of cable television service, equipment malfunctions, billings
or any other matter which remains unresolved after it has been brought
to franchisee's attention, may file a complaint with the Township.
H.
Resolution of complaints to Township. Upon the filing of such a complaint, the Township shall notify franchisee and make an investigation to determine whether or not there is reason to credit the allegations. If it is determined after such investigation that there is reason to credit the allegations of the complainant, the Township shall so notify franchisee and the complainant, and shall promptly endeavor to resolve the matter by conciliation. In the event such efforts are not successful, the Township may hold a hearing, as provided in § 13-416 hereof, to determine whether franchisee has violated any provision of this Part.
I.
Adequate repair staff. Franchisee shall maintain a repair force capable
of responding to subscriber complaints and/or requests for cable television
system repairs within 24 hours after the receipt of the complaint
and/or request. There shall be no charge to the subscriber for this
service. Franchisee shall respond to all service calls throughout
the franchise area on a nondiscriminatory basis.
J.
Nondiscrimination. Each class of subscriber service shall be offered
cable television service on a uniform, nondiscriminatory basis. Franchisee
shall not deny nor delay service, deny or delay access, or otherwise
discriminate against subscribers, channel users or general citizens
on any basis whatsoever.
K.
Tabulation. For the purpose of selling or sharing information with
third parties, franchisee shall not tabulate any test results, nor
permit the use of its cable television system for such tabulation,
which would reveal the commercial product performance or opinions
of subscribers, members of their families or their invitees, licensees
or employees without the express written consent of each and every
subscriber so polled or tabulated.
L.
New developments. In all cases where developments and subdivisions
are to be constructed and to be served in whole or in part by underground
power and telephone utilities, and in such areas where both utilities
are to be placed underground, exclusive of all electronic cable television
facilities, franchisee shall similarly install the cable television
system concurrently with the installation of the underground power
and telephone utilities. Accurate maps showing the location of all
underground cable localities shall be kept and updated as necessary
by franchisee with copies made available to the Township when requested.
Such map shall be as accurate as possible and shall be referenced
to curbs, monuments or other permanent references.
M.
Line extension. Franchisee shall install cable plant and offer cable
service to subscribers as specified in the franchise.
O.
Procedure for installation. Franchisee shall abide by the following
procedure for installation:
(1)
Under normal operating conditions, the standards in this section
shall be met no less than 95% of the time as measured on an annual
basis. The term "normal operating conditions" means those service
conditions which are within the control of franchisee. Those conditions
which are not within the control of franchisee include, but are not
limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions.
These conditions which are ordinarily within the control of franchisee
include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand period, and
maintenance or upgrade of the cable television system.
(2)
Once a request for cable service is received, franchisee shall either
set a specific appointment time or specify a four-hour time block
during normal business hours, as requested by the subscriber or potential
subscriber, during which franchisee's work crew shall install the
new equipment to receive service. The term "normal business hours"
means those hours during which most similar businesses in the community
are open to serve subscribers. Franchisee may schedule installation
activities outside of normal business hours for the express convenience
of the subscriber.
(3)
Unless a later date is requested by a potential subscriber, franchisee
shall complete installation of service for any new subscriber within
seven business days after any such request is received, where the
installation is located up to 150 feet from the existing distribution
system.
(4)
For new installations, excluding locations where all utilities are
underground, if a subscriber requests underground cable service, franchisee
may charge the subscriber the differential between the cost of aerial
and underground installation of the drop to the subscriber. This provision
shall not apply where underground construction is required by Township
local law or where utilities are located underground.
P.
The format of a subscriber's bill. Franchisee shall abide by the
following format requirements on subscriber's bills:
(1)
The bill shall be designed in such a way as to present the information
contained therein clearly and comprehensibly to subscribers. The bill
shall include a due date and be in an easily readable font and format.
(2)
The bill shall contain itemized charges for each category of service
and equipment and any installation of equipment or facilities and
monthly use thereof (together, "equipment") for which a charge is
imposed (including late charges, if any), an explicit due date, the
name and address of franchisee and telephone number for franchisee's
office responsible for inquiries and billing, the telephone number
specified by the Township for the resolution of billing disputes,
and the FCC Community Unit Identifier Number. The bill shall state
the billing period, amount of current billing and appropriate credits
or past due balances, if any.
(3)
Franchisee shall not charge a potential subscriber or subscriber
for any service or equipment that the subscriber has not affirmatively
requested by name. A subscriber's failure to refuse a cable operator's
proposal to provide any service or equipment shall not be deemed to
be an affirmative request for such service or equipment.
Q.
Payment options. Franchisee shall provide all individual, residential
subscribers with the option of paying for cable service by:
R.
Bill collection procedures. Franchisee shall adhere to the following
procedure regarding billing:
(1)
No bill shall be mailed more than 15 days prior to the date services
covered by such bill commence, except in cases where a subscriber
requests advance billing.
(2)
No bill shall be due less than 30 days from the date of the mailing
of the bill by franchisee to the subscriber, and a bill shall not
be considered delinquent until at least 30 days have elapsed from
date of mailing without receipt of payment. Late fees shall be fair
and reasonable and consistent with the rate setting methodology adopted
by the Federal Communications Commission, in accordance with the Cable
Act. Late fees shall not unduly burden any specific subscriber or
subscriber class.
(3)
Franchisee shall not physically or electronically discontinue service
for nonpayment of bills rendered for service until:
(a)
The subscriber is delinquent in payment for service;
(b)
Franchisee issues a separate written notice of impending discontinuance
of service that clearly states the amount in arrears, the total amount
required to be paid to avoid discontinuance of service, reconnection
charges if applicable and the date by which such payment must be made
to avoid discontinuance of service; and
(c)
Franchisee has served such notice addressed to such subscriber at
the address where the subscriber requests billing and one of the following
has occurred:
[1]
At least five days have elapsed after franchisee served such notice
personally upon the subscriber;
[2]
At least 10 days have elapsed after franchisee mailed by prepaid
first-class mail such notice to the subscriber; or
[3]
At least five days have elapsed after the subscriber either signed
for or refused a certified letter containing such notice, with postage
prepaid by franchisee.
S.
Procedures for the resolution of billing disputes. Franchisee shall
comply with the following procedure in resolving billing disputes:
(1)
The billing dispute resolution procedure shall be initiated once
a subscriber contacts franchisee's department which handles billing
questions or the Township, orally or in writing. If the subscriber
contacts the Township, the Township shall notify franchisee, by mail,
by telephone or by electronic means, that the dispute resolution procedure
has been initiated and franchisee shall then contact the subscriber
to discuss the dispute.
(2)
The subscriber shall not be required to pay the disputed portion
of the bill until the dispute is resolved. Franchisee shall not apply
finance charges, issue delinquency or termination notices; originate
collection procedures for the disputed portion of the bill pending
resolution of the dispute.
(3)
Franchisee shall promptly undertake whatever review is necessary
to resolve the dispute and shall notify the subscriber and, in cases
where the Township has forwarded a billing complaint from a subscriber,
the Township, of the results of the review and franchisee's proposed
resolution of the billing dispute as soon as it is completed, but
in no case later than 20 business days after receipt from the subscriber
or the Township of the billing dispute, problem or complaint notification.
T.
Subscriber equipment. Franchisee shall comply with all rules and
regulations promulgated by the FCC pursuant to §§ 623
and 624A of the Cable Act (47 U.S.C. §§ 543 and 544a).
U.
Notice of interruption of service. Except in emergencies or incidents
requiring immediate action, franchisee shall use reasonable efforts
to provide the Township and all affected subscribers with prior notice
of scheduled service interruptions.
V.
Outages. Following are time periods by which outages must be corrected
and repairs must be made by franchisee:
(1)
Franchisee shall maintain sufficient repair and maintenance crews
so as to be able to respond to any reception problem or other service
problem of either picture, or sound quality, or Internet service,
including any outage except for a problem caused by an intentional,
wrongful act of the subscriber or by the subscriber's own equipment
which was not supplied by franchisee, promptly and in no event later
than 24 hours after franchisee either receives a request for repair
service or franchisee learns of a problem, and franchisee shall use
its best efforts to correct such problem within 48 hours after a request
for repair service or franchisee learns of a problem. For purposes
of this section, "reception problem" shall constitute reception that
an affected subscriber reasonably determines is unsatisfactory, unless
franchisee can demonstrate that the signals transmitted to such subscriber
are in compliance with the FCC's technical signal quality standards.
(2)
Franchisee shall maintain, at all times, an adequate repair and service force in order to satisfy its obligations pursuant to Subsection V(1), above, and in cases where it is necessary to enter upon a subscriber's premises to correct any reception problem or other service problem, franchisee shall either set a specific appointment time or specify a four-hour time block during normal business hours, as requested by the subscriber or potential subscriber, during which franchisee's work crew shall work on the service problem. Franchisee may schedule service calls outside of normal business hours for the express convenience of the subscriber; provided, that franchisee's customer service representatives shall at all times endeavor to be aware of service or other problems in adjacent areas which may obviate the need to enter a subscriber's premises.
(3)
In no event shall franchisee cancel any necessary scheduled service
call after close of the business on the business day prior to the
scheduled appointment. If franchisee needs to cancel a scheduled appointment,
it must contact the subscriber and reschedule at a time convenient
for the subscriber.
W.
Failure to meet time periods may be excused. Franchisee's failure
to correct outages or to make repairs within the stated time periods
shall be excused in the following circumstances:
X.
No charge for repair service. Franchisee shall not impose any fee
or charge any subscriber for any service call to his or her premises
to perform any repair or maintenance work on franchisee's equipment.
Y.
Records of complaints, repair service requests, and outages. Franchisee
shall keep records showing all: requests for repair service; complaints
or requests that generate a work order or written response; and outages.
Franchisee's records shall contain, at a minimum, the following information:
the address of the affected subscriber; the date and the approximate
time of the complaint or request; the date and approximate time franchisee
responded; the date and approximate time service is restored; the
type and the probable cause of the problem; and a description of the
corrective action taken. Franchisee shall keep all such records for
at least three years from the date the record is made. Upon request
by the Township or the CAB, and in compliance with the Cable Act,
franchisee shall produce the requested records to the designated Township
office within 10 business days of the request for such records. Also,
franchisee shall provide to the Township Secretary, upon request by
the Township, a written summary of all such records from the past
year on a quarterly basis. Quarterly dates for the provision of such
written summaries are March 31, June 30, September 30 and December
31.
Z.
Time period for the resolution of complaints. Except where another
time period is required by any other provision of this section, franchisee
shall make a good faith effort to resolve, as soon as practicable
and in no event later than 30 business days, all complaints after
they are received by franchisee.
AA.
Notices required. Franchisee shall provide the following notices:
(1)
Franchisee shall provide notice to all persons receiving cable
service, including the Township, of any change in any fee, charge,
deposit, term or condition, which notice shall be provided no later
than 30 days prior to the effective date of any such change. All notices
required by this section shall specify, as applicable, the service
or services affected, the new rate, charge, term or condition, the
effect of the change, and the effective date of the change.
(2)
Franchisee shall provide notice, in writing, to all persons
receiving cable service, including the Township, of any change in
any channel assignment or in any service provided over any such channel,
which notice shall be provided no later than 30 days prior to the
effective date of any such change.
(3)
As described in this section, franchisee may terminate service
to any subscriber whose bill has not been paid after it becomes delinquent,
so long as franchisee gives proper notice to the subscriber.
(4)
Franchisee shall give the Township appropriate written notice
of proposed construction at least 10 days prior to such construction.
(5)
Franchisee shall provide prior notice of scheduled service interruptions
to affected subscribers.
BB.
Resubscription to cable service. Franchisee shall not refuse to serve
a former subscriber whose service was terminated, so long as all past
bills and late charges have been paid in full.
CC.
Disconnect. Franchisee shall adhere to the following procedures regarding
disconnection:
(1)
If disconnection occurs at the subscriber's written or oral
request, then, for billing purposes, the disconnection shall be deemed
to have occurred three business days after franchisee receives the
request for disconnection at franchisee's business offices unless:
the disconnection in fact occurs earlier; or the subscriber requests
that the disconnection be delayed beyond three days following the
request for disconnection.
(2)
Franchisee shall either set a specific appointment time or specify
a four-hour time period during normal business hours, during which
its work crew shall visit the subscriber's premises to disconnect
service and to remove any equipment. Franchisee may schedule such
service outside normal business hours for the express convenience
of the subscriber.
(3)
Franchisee shall not charge any fee for any disconnection.
DD.
Credits. In the event applicable law or regulation permits, at any
time during the term of the franchise agreement, the Township requires
franchisee to retroactively decrease or "roll back" rates, fees or
charges for any service provided pursuant to the franchise agreement,
franchisee shall automatically provide a credit on each subscriber's
bill affected by such decrease or rollback or as described by FCC
regulation.
EE.
National Cable Television Association's On-Time Customer Service
Guarantee. Franchisee shall to comply with the National Cable Television
Association's (NCTA) On-Time Customer Service Guarantee. The guarantee
"promises on-time service calls or the customer receives $20 or such
higher amount as specified from time to time by the NCTA, and on-time
installation calls or the customer receives a free installation."
FF.
Fire, etc.; free replacement. If a subscriber provides reasonable
evidence that the subscriber's converter box or other cable-related
franchisee-owned customer premises equipment is destroyed by fire,
flood, tornado, building collapse or otherwise such that the premises
are not habitable, franchisee shall refund any deposit for such equipment
and shall not charge the subscriber for replacement equipment but
may seek reimbursement from applicable insurance policies.
GG.
Privacy and monitoring. Except in the case of court order or police
warrant, franchisee shall not tap, monitor, or arrange for the tapping
or monitoring, or permit any other person to tap or monitor, any cable,
line, signal, input device, or subscriber facility for any purpose,
without the written authorization of the affected subscriber. Such
authorization shall be revocable at any time by the subscriber without
penalty by delivering a written notice of revocation to franchisee;
provided, however, that franchisee may conduct cable television systemwide
or individually addressed "sweeps" solely for the purpose of verifying
cable television system integrity, checking for illegal taps or billing.
HH.
Truth in advertising. Franchisee's bills, advertising and communications
to its current or potential subscribers shall be truthful and shall
not contain any false or misleading statement. For the purposes of
the preceding, a statement is false or misleading if it contains an
untrue statement of any material fact or omits to state a material
fact necessary in order to make the statements made, in the light
of the circumstances under which they were made, not misleading.
II.
Reservation. The Township reserves the right by ordinance to alter
or amend the customer service and consumer protection matters set
forth in this section, including adopting ordinances stricter than
or covering items not presently set forth in this section. The Township
agrees to meet with franchisee on the matters in question prior to
taking such action, and to provide franchisee with at least 45 days'
prior written notice of such action.
A.
Township regulation. To the extent that federal or commonwealth law
or regulation may now, or hereafter, authorize the Township to regulate
the rates for any particular service tiers, service packages, equipment,
or any other services provided by franchisee, the Township shall have
the right to exercise rate regulation to the full extent authorized
by law, or to refrain from exercising such regulation for any period
of time, at the sole discretion of the Township.
B.
Ability to petition. If applicable, the Township shall have the right
to petition the Federal Communications Commission or other appropriate
agency or organization to obtain rate regulation authority or to petition
the federal body to review or regulate rates in the Township.
C.
Rate schedule filings. Franchisee shall annually send to all persons
receiving cable service, including the Township, an official rate
card and a full schedule of all other subscriber and user rates and
all other charges such as, but not limited to, pay TV, lease channel
and other services made in connection with the cable television system;
franchisee shall notify subscribers in writing at least 30 days prior
to the implementation of any change in services offered, rates, charges,
or terms and conditions related thereto. Any special rates for large
institutions, motels, multiple-family dwelling units or any other
type of subscriber shall be provided upon request. All rates shall
be published and nondiscriminatory within the same general class of
subscribers and must be applied fairly and uniformly to all subscribers
in the franchise area for all services. Nothing contained herein shall
prohibit franchisee from offering:
D.
Rate regulation. Rates charged for basic and additional services
shall be consistent with Federal Communications Commission regulations
and in conformance with this Part. In case of a conflict, this Part
shall govern unless preempted by federal or commonwealth regulations.
E.
Promotional rates. Nothing in this Part shall prohibit the reduction
or waiving of charges in conjunction with promotional campaigns for
the purpose of attracting subscribers or users.
F.
Security deposit. Franchisee shall not be permitted to charge a hardware/software
security deposit fee greater than franchisee's cost of the hardware/software.
G.
Refund on deposits. If franchisee collects a deposit on any service
requested by a subscriber or user, franchisee shall provide such service
within 30 days or refund within the next five days all deposits or
advance charges paid for the service. This provision does not alter
a franchisee's responsibility to subscribers and users under any contractual
agreements separate from this Part that franchisee may have with subscribers
or users or relieve franchisee of liability for penalties under this
Part or damages that may accrue to the Township or any subscriber
because of franchisee's failure to provide a promised service.
H.
Termination. If a subscriber terminates basic service prior to the
end of a prepaid period, a prorated portion of any prepaid subscriber
service fee, using the total number of days of the prepaid period
as a basis, shall be refunded to the subscriber by franchisee.
I.
Long drop fees. In the event that a resident desires connection and
franchisee determines that more than 150 feet of connecting cable
is required in order to connect the resident, then franchisee shall
provide to and may charge to the subscriber the additional labor and
materials (above the cost of the initial 150 feet) required to connect
the resident at franchisee's actual cost, upon notice of the cost
to, and the agreement to pay the cost from, the subscriber.
A.
Franchise fees. As compensation for a franchise granted pursuant
to this Part, and in consideration of permission to use the public
rights-of-way of the Township for the construction, operation, maintenance
and reconstruction of a cable television system within the Township,
franchisee shall pay annually to the Township an amount equal to 5%
of a franchisee's total gross revenues from all sources attributable
to the operations of franchisee or any affiliated entity within the
Township each year of this Part or the maximum allowed by law, whichever
is higher.
B.
Payments to be made quarterly. The franchise fee shall be payable, at a minimum, quarterly to the Township not later than 45 days after the expiration of each calendar quarter. Quarterly computation dates are March 31, June 30, September 30 and December 31. At the time of payment of the quarterly franchise fee, franchisee shall file a complete and accurate statement of all gross revenue, as provided in § 13-419. If such payments are late, franchisee shall pay the Township interest on any such late payment at an annual rate of interest of 10% each month or part thereof that the payment is late.
C.
Audit. The acceptance of any payment shall not be construed as an
accord that the amount paid is, in fact, the owed amount, nor shall
such acceptance of payment be construed as a release of any claim
the Township may have for further or additional sums payable under
the provisions of this Part. All amounts paid shall be subject to
audit and recomputation by the Township. In the event that recomputation
results in additional revenue to be paid to the Township, such amount
and interest at an annual rate of 10% from the time due shall be paid
to the Township within 30 days, and if such sum shall exceed 6% of
the total franchise fee which the audit determines should have been
paid for any calendar year, franchisee shall pay the Township's cost
of auditing that calendar year as well.
A.
Grounds for revocation. The Township reserves the right to revoke
any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in any of the following circumstances,
each of which shall represent a default and breach under this Part
and the franchise agreement:
(1)
Franchisee's default in the performance of any of the material obligations
under this Part, the franchise agreement, or under such documents,
contracts and other terms and provisions entered into by and between
the Township and franchisee.
(2)
Franchisee's failure to provide or maintain in full force and effect
all bonds required herein.
(3)
Franchisee's failure to maintain in full force and effect any insurance
required herein.
(4)
Franchisee's violation of any orders or rulings of any regulatory
body having jurisdiction over franchisee relative to this Part or
the franchise agreement.
(5)
Franchisee's violation of any of the provisions of this Part or the
franchise agreement or the practice of any fraud or deceit upon the
Township or cable subscribers.
(6)
Franchisee's construction schedule is delayed later than the schedule
contained in the franchise agreement or beyond any extended date set
by the Township.
(7)
Franchisee's insolvency, inability or unwillingness to pay its debts
or adjudication of bankruptcy.
(8)
Franchisee's failure to restore service from an outage after 96 consecutive
hours of interrupted service, except when approval of such interruption
is obtained from the Township.
(9)
Franchisee's misrepresentation of, or omission of, a material fact
in the application for, or negotiation of the franchise agreement
or any extension or renewal thereof.
(10)
Franchisee's cessation of provision of services over the cable
television system for any reason within the control of franchisee.
(11)
Franchisee's failure to comply with the public, educational,
and government access provisions of this Part or the franchise agreement.
(12)
Any foreclosure or judicial sale of all, or any part of, the
cable television system shall be considered default. Initiation of
any such proceedings shall be treated as a notification of a change
of control of franchisee.
B.
Force majeure. If, by reason of force majeure, franchisee, in whole
or in part, is unable to carry out its obligations hereunder, franchisee
shall not be deemed in violation or default during the continuance
of such inability. The term "force majeure," as used herein, shall
mean the following: acts of God; acts of public enemies; orders of
any kind of the government of the United States of America or of the
Commonwealth of Pennsylvania or of any of their departments, agencies,
political subdivisions or officials or any civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquakes;
fires; hurricanes; volcanic activity; storms; floods; washouts; droughts;
civil disturbances; explosions; and circumstances beyond the control
of franchisee and any affiliates.
C.
Revocation. The CAB or the Township shall notify franchisee in writing,
by certified mail, return receipt requested, at its business address,
of the alleged default giving rise to revocation of the franchise.
Franchisee shall have 60 days from its receipt of the notice to cure
the violation(s) and/or make a written response to the CAB or the
Township, as the case may be. If franchisee does not respond or, if
upon receipt of franchisee's response, the CAB or the Township concludes
that a basis for revocation still exists, it shall notify franchisee
thereof, and provide the franchisee 60 days' written notice of the
time and place of a public hearing before the Township Board of Supervisors.
The CAB may submit an advisory opinion to the Township Board of Supervisors
prior to the date of the public hearing.
D.
Public hearing. At the public hearing, the parties shall have the
right to be represented by counsel and shall be afforded the opportunity
to present evidence and cross-examine witnesses on relevant issues.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitions matter may be excluded. A stenographic record
of the proceedings shall be kept. A decision by a majority of the
Board of Supervisors is required for revocation. Following the public
hearing, the Board of Supervisors may revoke the franchise, may direct
franchisee to comply within such time and manner and upon such reasonable
terms and conditions as the Board of Supervisors may direct, may mitigate
the revocation to a penalty in the discretion of the Board of Supervisors,
or take any other action that it deems equitable and just in the circumstances.
The public hearing shall be governed by the provisions of the Pennsylvania
Local Agency Law, 2 Pa.C.S.A. § 552 et seq.
E.
Removal. Upon revocation of a franchise, the Township shall have
the right to require franchisee to remove, at franchisee's expense,
all or a portion of the cable television system required by public
necessity from all public rights-of-way within the Township.
F.
Purchase. If the franchise is revoked in accordance with the foregoing
procedures, the Township may (but shall not be required to) acquire
the system at an equitable price. The Township shall have 90 days
after a decision to revoke the franchise to send franchisee notice
that it intends to purchase the system. If a determination of such
price cannot be agreed upon, then each party shall select an appraiser
and such appraiser shall select a third appraiser. The amount to be
paid shall be equal to 50% of the sum of the two appraisers that are
closest to each other. In the event the Township does not elect to
acquire the system within 90 days of the date the franchise is revoked
as provided herein, franchisee shall be entitled to secure a private
purchaser of the system subject to approval by the Township. If permitted
or required by the Township, franchisee may continue to operate the
cable television system for a period up to 270 days after notification
by the Township that the franchise will be revoked.
G.
Effect of pending litigation. Pending litigation or any appeal to
any regulatory body or court having jurisdiction over franchisee shall
not excuse franchisee from the performance of its obligations under
this Part or the franchise agreement. Failure of franchisee to perform
such obligations because of pending litigation or petition may result
in forfeiture or revocation pursuant to the provisions of this section.
Any person, firm, corporation or utility that violates or permits
the violation of any provision of this Part shall be subject to a
civil penalty in the amount of $600. A separate offense shall arise
for each day or portion thereof that a violation exists and/or for
each section of the Part violated. When the penalty imposed for violation
of this Part is not voluntarily paid to the Township within 30 days
of receipt of a written demand for payment, or such longer time frame
agreed to in writing by the Township, the Township may initiate a
civil enforcement proceeding before a Magisterial District Judge,
in accordance with the Pennsylvania Second Class Township Code,[1] in which case the violator shall be liable for the penalty
imposed, including daily penalties for continuing violations, plus
court costs and reasonable attorney's fees incurred by the Township.
The Township shall be exempt from the payment of costs in any civil
case brought to enforce this Part. In addition to or in lieu of civil
actions before a Magisterial District Judge, the Township may enforce
this Part in an action in equity brought in the Bucks County Court
of Common Pleas.
[1]
Editor's Note: See 53 P.S. § 65101 et seq.
A.
Franchise renewal. Upon completion of the term of any franchise granted
under this Part, the Township may, in its sole discretion, grant or
deny renewal of the franchise of franchisee in accordance with the
provisions of the Cable Act. Franchisee shall continue to own the
cable television system; but shall have no right to use of public
right-of-way upon the denial of the franchise renewal is revocation
of the franchise. There shall be no automatic right of renewal of
the franchise rights granted hereunder.
B.
Denial of renewal. If at any time franchisee requests renewal of
the franchise and the Township decides to deny such renewal; thereby
rendering the franchise null and void, the Township shall have the
right but not the obligation to purchase the cable television system
at fair market value, determined on the basis of the cable television
system valued as a going concern but with no value allocated to the
franchise itself. If the franchise is revoked, the Township may purchase
the cable system at an equitable price. The Township shall have 90
days after a decision to deny or revoke the franchise to send franchisee
notice that it intends to purchase the system. If a determination
of such costs cannot be agreed upon, then each party shall select
an appraiser and such appraiser shall select a third appraiser. The
amount to be paid shall be equal to 50% of the sum of the two appraisers
that are closest to each other. If the Township fails, within 90 days
after such decision to deny renewal of or revoke the franchise, to
notify franchisee of its intention to purchase the cable television
system, franchisee may secure a private purchaser for the cable television
system subject to the approval of the Township and subject to Township's
grant of a franchise to such purchaser or the Township may, effect
a transfer pursuant to the Cable Act. If permitted by the Township,
franchisee may, or the Township may require franchisee to, continue
to operate the cable television system for a period up to 270 days
after notification by the Township that the franchise was revoked
or the renewal was denied. The Township may permit franchisee to operate
the system for a longer period, if both the Township and franchisee
agree in writing.
C.
Removal. Upon denial of renewal of a franchise, the Township shall
have the right to require franchisee to remove, at franchisee's expense,
all or a portion of the cable television system required by public
necessity from all public right-of-way within the Township.
A.
Ongoing regulation. The Township shall exercise appropriate regulatory
authority under the provisions of this Part and applicable law. This
authority shall be vested in the Township Board of Supervisors and
administered by the Township Board of Supervisors or their designee.
The Township Board of Supervisors or their designee shall provide
day-to-day administration and enforcement of the provisions of this
Part and any franchise granted hereunder, and shall carry out the
Township's responsibilities with regard to cable television.
B.
Compliance. At all times during the term of the franchise agreement,
franchisee shall comply with all laws, ordinances, rules or regulations
of the Township, commonwealth and governments, their regulatory agencies
or commissions which are now, or may be applicable to the construction
and operation of the cable television system.
C.
Change in law or regulation. Notwithstanding any other provisions
of this Part to the contrary, franchisee shall at all times comply
with all laws and regulations of the Township, commonwealth and federal
governments. In the event that any actions of the commonwealth, federal
government or any agency thereof, or any court of competent jurisdiction
upon final adjudication, substantially reduce in any way the power
or authority of the Township under this Part or the franchise agreement,
or if in compliance with any Township, commonwealth, or federal law
or regulation, franchisee finds conflict with the terms of this Part,
the franchise agreement, or any law or regulation of the Township,
then as soon as possible following knowledge thereof, franchisee shall
notify the Township of the point of conflict believed to exist between
such law or regulation and/or the laws or regulations of the Township,
this Part and the franchise agreement. The Township, at its option,
may notify franchisee that it wishes to negotiate those provisions
which are affected in any way by such modification in regulations
or statutory authority. Thereafter, franchisee shall negotiate in
good faith with the Township in the development of alternate provisions
which shall fairly restore the Township. The Township shall have the
right to modify any of the provisions to such reasonable extent as
may be necessary to carry out the negotiated settlement.
D.
Authority. The Township reserves the right to exercise the maximum
plenary authority, as may at any time be lawfully permissible, to
regulate the cable television system, the franchise agreement and
franchisee. Should applicable legislative, judicial or regulatory
authorities at any time permit regulation not presently permitted
to the Township, the Township may without the approval of franchisee
engage in any such additional regulation as may then be permissible,
whether or not contemplated by this Part or the franchise agreement,
including without limitation, regulation regarding franchise fees,
taxes, programming, rates charged to subscribers and users, consumer
protection, or any other similar or dissimilar matter.
E.
Right of inspection of records. The Township shall have the right
to inspect all books, records, test data, reports, maps, plans, financial
statements, and other like materials of franchisee that are related
to the regulation of the franchise agreement or this Part, at any
time during normal business hours. Franchisee shall provide such records
in such form as may be required by the Township upon 15 days' written
notice to franchisee. Access to the aforementioned records shall not
be denied by franchisee on the basis that said records contain "proprietary"
information, but the Township shall treat all such proprietary information
to which it is given access as confidential and not copy or disclose
it. Information provided to the Township that franchisee believes
is "proprietary" shall be so marked prior to providing the information
to the Township. Notwithstanding the above, the Township shall be
governed by the requirements of commonwealth law.
F.
Testing. The Township shall have the right to make such tests as
it shall deem necessary to ensure compliance with the terms of this
Part and other pertinent provisions of the law or regulation.
G.
Right of inspection of property. At all reasonable times, franchisee
shall permit examination by any duly authorized representative of
the Township of system facilities, together with any appurtenant property
of franchisee situated within or without the Township.
H.
Right of intervention. The Township shall have the right of intervention
in any suit or proceeding to which franchisee is party, and franchisee
shall not oppose such intervention by the Township.
I.
Expense reimbursement to Township. Franchisee for an initial franchise
or transfer shall pay the Township a sum of money which will reimburse
all costs and expenses incurred by the Township in connection with
the initial franchises and any transfer processes, including, but
not limited to, consultant fees, attorneys' fees, publication fees,
travel expenses and all other direct costs; provided, however, that
the Township shall submit a detailed schedule of all such costs. Such
payment shall be made within 30 days after the Township furnishes
franchisee with a written statement of such expenses. Except that,
if upon request for a transfer, the franchisee is in compliance with
this Part and the franchise agreement, the Township shall be reimbursed
for a total of $5,000 adjusted annually for increases in the Consumer
Price index.
A.
Cable Advisory Board (CAB). There are hereby established two seats
representing Upper Makefield Township on the advisory board for cable
television already serving Wrightstown and Upper Makefield Township,
which shall be known as the "Cable Advisory Board." This Board acts
as an advisory body to each of its respective municipalities on matters
pertaining to cable television.
B.
Membership. The CAB shall be composed of four members, two of whom
shall be residents of Wrightstown Township and two of whom shall be
residents of Upper Makefield Township. Each Township's Board of Supervisors
shall have the option to appoint one alternate member, who shall not
generally have voting status but may attend meetings and may vote
only in place of a regular member from that Township who is absent
from a meeting. Terms of members shall be for staggered two-year terms.
Any vacancy shall be filled by a person chosen by the Board of Supervisors
of the respective municipality for the remainder of the term. No employee
of, or person with ownership interest in, a cable television franchise
granted pursuant to this Part shall be eligible for membership on
the Board. The chair of the Board shall be elected by the members
of the Board for a term of one year. Action of the Board shall require
concurrence of at least a majority of its members.
C.
Functions. The Board shall have the following functions:
(1)
Advise the Townships' Boards of Supervisors and review franchise
applications and applications for franchise renewal, extension, and
transfer.
(2)
Initiate proceedings regarding revocation of the franchise, make
initial determinations of ordinance violations, serve notice of ordinance
violations and penalties on franchisee and consider complaints of
any person with respect to cable service. If the CAB recommends revocation,
or denial of renewal, of a franchise, it shall prepare a report to
the Townships' Boards of Supervisors supporting its recommendation.
The Townships' Boards of Supervisors may adopt the CAB's report and
recommendation or make its own findings and conclusions with respect
to whether to initiate procedures to revoke, or deny renewal, of the
franchise, and whether to initiate or continue procedures or impose
penalties.
(3)
Ensure that franchisee complies with all testing requirements of
the Part and franchise agreement, and require additional testing as
provided for in the Part and/or franchise agreement. Review all reports
provided for in the Part and/or franchise agreement. Make recommendations
to the Townships' Boards of Supervisors regarding the requirement
of additional tests, as provided for in this Part. CAB also has authority
to review all reports submitted pursuant to this Part or the franchise
agreement and to make recommendations to the Townships' Boards of
Supervisors regarding same.
(4)
Receive complaints from subscribers of cable television services,
attempt to resolve disputes regarding the provision of service and
make initial determinations of Part violations and serve notice of
Part violations on the franchisee, in accordance with any applicable
sections of this Part.
(5)
Resolve disagreements and disputes among franchises or other types
of services operating or desiring to operate within the Township(s).
(6)
Cooperate with other municipalities and government agencies regarding
development of the technology exchanges and assist Wrightstown and
Upper Makefield Townships in developing access, institutional network
and Internet use.
(7)
Audit all franchisee records as required by this Part, and specify
details for franchisee's preparation and filing of information additional
to that required herein.
(8)
Make an annual report to the Townships, including an account of franchise
fees received and distributed, the total number of hours of utilization
of public channels, and hourly subtotals for various programming categories,
and a review of any plans submitted during the year by franchisee
for development of new services or changes of existing services.
(9)
Promote the usage of all public, educational and governmental access
channels required in the franchise agreement. Recommend to the Townships'
Boards of Supervisors the establishment of or any changes in the operating
rules and regulations of all public, educational and government access
channels and the programming to be selected from other municipalities
to be placed on one of the government access channels. Cooperate with
other municipalities on the development of regional public, educational,
and government programming.
(10)
Designate the organizations or institutions which will serve
as access channel operators.
(11)
Conduct an evaluation of the cable television system, services,
customer complaints, state-of-the-art, and other areas related to
compliance with the Part and the franchise agreement whenever deemed
appropriate by the CAB in consultation with franchisee, upon Township
approval, and utilizing outside technical consultants where necessary,
which shall be paid for from franchise fees received by the Township
from franchisee.
(12)
Make recommendations to the Township regarding cable services.
(13)
Upon request to and approval by each Township's Board of Supervisors,
procure the services of a hearing officer, auditor, technical consultant
or other person to assist Board members in carrying out their functions
under this Part.
A.
Disclaimer of liability. Township shall not at any time be required
to pay from its own funds for injury or damage occurring to any person
or property from any cause whatsoever arising out of franchisee's
construction, maintenance, repair, use, operation, condition or dismantling
of franchisee's cable television system or franchisee's provision
of cable services. Nothing herein shall be construed to hold franchisee
responsible for the Township's gross negligence.
B.
Indemnification. Franchisee shall pay on behalf of, or indemnify
and hold harmless, the Township, its employees, officers, agents and
volunteers from and against any and all suits, claims, actions, damages,
fees, penalties, costs of defense (including attorney fees, expert
witness fees and court costs) and liabilities arising out of franchisee's
(or franchisee's officers, employees, agents, volunteers or subcontractors)
performance, failure to perform, error, omission, negligence of default
under the terms of its franchise or other contracts. The indemnification
and hold harmless provisions of this Part and the franchise agreement
shall survive the termination or expiration of the franchise for any
claims arising during the term of the franchise agreement or during
the removal of the cable system from the rights-of-way.
C.
Commercial general liability insurance. Franchisee shall maintain
and by its acceptance of this Part specifically agrees that it will
maintain throughout the terms of this Part liability insurance insuring
the Township and franchisee with regard to all damages mentioned herein,
in the minimum amounts of:
D.
Automobile liability insurance. Franchisee shall maintain, and by
its acceptance of any franchise granted hereunder specifically agrees
that it will maintain, throughout the term of the franchise agreement,
automobile liability insurance for owned, nonowned, or rented vehicles
in the minimum amount of:
E.
Umbrella liability coverage. Umbrella liability coverage, with limits
of not less than $3,000,000 per occurrence covering all work performed
under this contract.
F.
Financial security.
(1)
Franchise agreement. Franchisee shall maintain throughout the term
of its franchise financial security in the form satisfactory to the
Township Solicitor and in an amount specified in the franchise agreement
or satisfactory to the Township Engineer. Such security shall ensure
that franchisee observes, fulfills and performs each term of its franchise
agreement and this Part.
(2)
Financial security prior to construction. Prior to any construction,
modifications or repair in the public right-of-way, franchisee shall
post financial security in the amount of 110% of the cost of restoration
as determined by the Township Engineer, plus a reasonable amount for
engineering, inspection, legal and administrative fees. If franchisee
requires more than one year to complete the construction, modifications
or repairs, the amount of financial security may be increased by 10%
for each year or portion of year beyond the one-year period.
(3)
Types of financial security. The following shall be acceptable financial
security: cash escrow, performance or construction bond in a form
and with a surety acceptable to the Township, or a letter of credit
posted with a financial institution with offices in Bucks County,
Pennsylvania.
G.
Township surety approval. The insurance policies and financial securities
obtained by franchisee in compliance with this section shall be approved
by the Township as to form and shall be in compliance with this Part.
Franchisee shall be responsible for filing all required certificates
of insurance policies and financial security with the Township Secretary.
H.
Expenses. All expenses of the above-noted insurance and financial
surety shall be paid by franchisee.
I.
Insurance policies. The insurance policies mentioned herein shall
contain an endorsement stating that the policies are extended to cover
liability assumed by franchisee under the terms of this Part and shall
contain the following endorsement:
J.
No limitation on liability. Neither the provisions of this Part nor
any insurance accepted by the Township pursuant hereto, nor any damages
recovered by the Township thereunder, shall be construed to excuse
faithful performance by franchisee or limit the liability of franchisee
under the franchise agreement issued hereunder or for damages, either
to the full amount of the financial security or otherwise.
K.
Hold harmless. All contractual liability insurance policies maintained
pursuant to this Part or the franchise agreement shall include the
provision of the following hold harmless clause:
|
Franchisee agrees to indemnify, save harmless and defend the
Township, its officials, agents, servants, and employees, and each
of them against and hold it and them harmless from any and all lawsuits,
claims, demands, liabilities, losses and expenses, including court
costs and reasonable attorney's fees for or on account of any injury
to any person, or any death at any time resulting from such injury,
or any damage to any property, which may arise or which alleged to
have arisen out of or in connection with franchisee's installation,
operation, maintenance or repair of the cable television system and/or
copyright infringements and/or other damages arising from the Township's
grant of this nonexclusive franchise and is caused, in whole or in
part, by a negligent act or omission of franchisee, its subcontractors
or anyone directly or indirectly employed by any of them or anyone
for whose act any of them may be liable, regardless of whether or
not it is caused in part by party indemnified hereunder and whether
or not the act or omission complained of is authorized or prohibited
by this Part and/or the franchise granted hereunder; excepting when
the party indemnified hereunder acts in a grossly negligent manner.
|
A.
FCC regulations. Franchisee shall comply with the present and future
rules and regulations of the Federal Communications Commission in
connection with and relating to the operation of its cable television
system and shall provide the access channels as specified in the franchise
agreement.
B.
Access equipment. Franchisee shall provide access equipment, facilities,
and services as provided in the franchise agreement.
C.
Content. Except as provided by federal law, franchisee shall in no
way restrict the content or message of any program presented over
any of the access channels. There are, however, subjects which are
specifically prohibited by this Part from being distributed, telecast
and/or cablecast via the cable television system. The following material(s)
are specifically prohibited from being distributed, telecast and/or
cablecast on any and all access channels by access users:
(1)
Any advertising material designed to promote the sale of commercial
products or services, including advertising by or on the behalf of
candidates for public elective office.
(2)
Any lottery information, gift enterprise or similar scheme, offering
prizes dependent in whole or in part upon lot or chance, or any list
of prizes drawn or awarded by means of any such lottery, gift enterprise
or similar scheme, whether such list contains any part or all of such
prizes, or similar scheme if, in connection with such programs, a
prize consisting of money or an item of value is awarded to any person
whose selection is dependent in whole or in part upon lot or chance,
if as a condition of winning or competing for such prize, such winner
or winners are required to furnish any money or item of value or are
required to have in their possession any product sold or manufactured,
furnished or distributed by a sponsor of any program transmitted via
the cable television system.
(3)
Any material that is obscene or otherwise unprotected by the First
Amendment.
D.
Prohibited material. In accordance with the Cable Act, franchisee
shall refuse to distribute via the cable television system access
programming or leased channel programming that is obscene or otherwise
unprotected by the United States Constitution.
E.
Clearances. All users of any and all access channels shall be responsible
for all necessary and appropriate arrangements with, and shall obtain
all appropriate clearances from broadcast stations, networks, sponsors,
music licensing organizations, performers, representatives, any and
all other persons, natural and otherwise, as may be necessary to transmit
their program material over the cable television system.
F.
Access regulations. The CAB shall have the authority to approve the
access rules and regulations for all access channels and to designate
the organizations or institutions which will serve as access channel
operators.
G.
Cable in the classroom. Franchisee shall provide "Cable in the Classroom"
and guides to the schools in Township served by franchisee, free of
charge, to the extent available to franchisee.
A.
Reports. Franchisee shall submit written reports to the CAB upon
the request of the Township, which shall include, but not be limited
to:
(1)
Annual statement of income certified by a financial officer of franchisee
or CPA. The annual statement of income shall be delivered to the Township
no later than 30 days after request by the Township.
(2)
Annual list of officers and members of the Board of a franchisee
and the parent corporation, a consolidated financial statement, and
annual report of franchisee and parent corporation. These documents
shall be delivered to the Township no later than 30 days after request
by the Township.
(3)
A quarterly summary of all: requests for repair service; complaints
or requests that generate a work order or written response; and outages.
Such summary to include the following information: the name and address
of the affected subscriber; the date and the approximate time of the
complaint or request; the date and approximate time franchisee responded;
the date and approximate time service is restored; the type and probable
cause of the problem; the names of franchisee's employees who took
the corrective action(s); and a description of the corrective action
taken. If requested, the quarterly summaries shall be delivered to
the Township on May 15 for the quarter ending March 31, August 15
for the quarter ending June 30, November 15 for the quarter ending
September 30 and February 15 for the quarter ending December 31.
(4)
Quarterly, the number of subscribers at each level of service. Report
shall be delivered to the Township on May 15 for the quarter ending
March 31, August 15 for the quarter ending June 30, November 15 for
the quarter ending September 30 and February 15 for the quarter ending
December 31.
(5)
Copies of franchisee's proof of performance measurement and signal
leakage measurements and compliance within 30 days of request and
completion of the tests.
(6)
Upon request prior to transfer or renewal, a financial statement
including a statement of income, a balance sheet, and a statement
of sources and applications of funds.
B.
Records retention.
(1)
Financial records. Franchisee shall retain all records related to
franchise fees throughout the franchise term and for three years thereafter,
unless a shorter term is designated in the franchise agreement.
(2)
Records of complaints, repair service requests and outages. Franchisee
shall keep all records relating to all: requests for repair service;
complaints or requests that generate a work order or written response;
and outages; for at least three years from the date the record is
made. Upon request by the Township or CAB, franchisee shall produce
the requested records to the designated Township office within 10
business days of the request for such records.
(3)
Other records. Franchisee shall retain all other records for a period
of five years, unless a shorter period is designated herein or in
the franchise agreement.
C.
Additional reports.
(1)
Insurance and securities certificate. Annual certificates of insurance
and financial securities required by this Part to be provided to the
Township Secretary. The certificates of insurance and financial securities
shall be delivered to the Township no later than 30 days after the
effective date of the franchise agreement entered into between franchisee
and the Township.
(2)
Franchise fee reports.
(a)
At the time of payment of the quarterly franchise fee, franchisee
shall file a summary of franchisee fees, also known as a franchise
fee statement, itemized by source or category of revenue, of all gross
revenue derived within the Township during the period for which the
quarterly franchise fee payment is made, in substantially the format
specified in the franchise agreement. The franchise fee statement
shall be verified by a financial representative of the franchisee
and shall cover the following periods and be due on a quarterly basis
as follows:
|
Quarter
|
Due Date
| |
|---|---|---|
|
January 1 to March 31
|
May 15
| |
|
April 1 to June 30
|
August 15
| |
|
July 1 to September 30
|
November 15
| |
|
October 1 to December 31
|
February 15
|
(b)
Once a year, due on February 15, franchisee shall file with
the Township Secretary an annual statement of income certified by
a financial officer of franchisee or certified public accountant.
(3)
Technical test results. Results of tests required by Township within
10 business days of the date the Township notifies franchisee to perform
such test.
(4)
Upon request, franchisee shall prepare and furnish to the Township
at the times and in the form reasonably prescribed by the Township,
such additional reports with respect to its operation, affairs, transactions
or property, as may be reasonably necessary and appropriate to the
performance of any of the rights, functions or duties of the Township
in connection with this Part or the franchise agreement.
D.
Federal filings. Upon request by the Township, copies of all petitions,
applications and communications submitted by franchisee to the Federal
Communications Commission, Securities and Exchange Commission or any
other federal or commonwealth regulatory commission or agency having
jurisdiction in respect to any matters affecting franchisee's operations
authorized pursuant to this Part, shall also be submitted by franchisee.
A.
Transfer of franchise. A franchise shall not be assigned or transferred,
either in whole or in part, or leased, sublet, or mortgaged in any
manner, nor shall title to the cable television system be transferred,
legal or equitable, or any right, interest or property therein, pass
to or vest in any person without the prior written consent of the
Township. Any transfer of the franchise without the prior consent
of the Township shall make the franchise subject to cancellation.
B.
Transfer of ownership. Franchisee shall not sell, assign, transfer
or dispose of 20% or greater ownership interest in franchisee or more
at one time of the ownership or controlling interest in the cable
television system, or 20% cumulatively over the term of the franchise
agreement of such interests to a corporation, partnership, limited
partnership, trust or association, or person or group of persons acting
in concert without the prior written consent of Township. Every sale,
transfer, or disposition of 20% or greater ownership interest as specified
above in franchisee shall make the franchise subject to cancellation.
C.
Transfer of control. Franchisee shall not change control, in whatever
manner exercised, of franchisee or any parent company without the
prior written consent of the Township. Every change, transfer, or
acquisition of control of franchisee shall make the franchise subject
to cancellation unless and until the Township shall have consented
thereto.
D.
Township approval. For the purpose of determining whether it shall
consent to such change, transfer, or acquisition of the franchise
or ownership or control, the Township may inquire into the legal,
financial, character, technical and other public interest qualifications
of the prospective transferee or controlling party, and franchisee
shall provide the Township with all required information. The Township
reserves the right to impose certain conditions on the transferee
as a condition of the franchise to ensure that the transferee is able
to meet existing requirements of this Part and the franchise agreement
requirements. If the Township has not taken action on franchisee's
request for transfer within 120 days or other period of time as required
by federal law, consent by the Township shall be deemed given, unless
the requesting party and the Township agree to an extension of time.
E.
No waiver of Township property rights. The consent or approval of
the Township or any other public entity to any transfer of franchisee
shall not constitute a waiver or release of the rights of the Township
in and to the public property or public right-of-way, and any transfer
shall, by its terms, be expressly subordinate to the terms and conditions
of this Part and the franchise agreement.
F.
Purchase price. Based upon public information, the Township reserves
the right to review the purchase price of any transfer or assignment
of the cable television system.
G.
Signatory requirement. Any approval by the Township of transfer of
ownership or control of the franchise or franchisee shall be contingent
upon the prospective transferee agreeing in writing to be bound by
the terms and conditions of this Part and the franchise agreement.
H.
Default notification. Any foreclosure or judicial sale of all, or
any part of, the cable television system shall be considered default.
Initiation of any such proceedings shall be treated as a notification
of a change of control of franchisee.
I.
Receiver. The Township Board of Supervisors shall have the right
to cancel franchisee's franchise 120 days after the election or appointment
of a receiver or trustee to take over and conduct the business of
franchisee, whether in receivership, reorganization, bankruptcy or
other action or proceedings, unless such receivership or trusteeship
shall have vacated prior to the expiration of the 120 days, or unless:
(1)
Within 120 days after the election or appointment, such receiver
or trustee shall have fully complied with all provisions of this Part
and remedied all defaults thereunder; and
(2)
Within said 120 days, such receiver or trustee shall have executed
an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this Part.
A.
Invitation of applications for an initial franchise; public notice
of "request for proposals. The Township may invite applications for
a cable television franchise by means of a public notice advertising
the availability of its "request for proposals."
(1)
The public notice shall contain, but need not be limited to:
(a)
A description of the franchise area which is sought.
(b)
A statement that a formal "request for proposals" is available
to prospective applicants from a Township official whose name, address,
and telephone number are specified.
(c)
A statement that applications for the franchise must be submitted
in writing in the form and manner specified in the "request for proposals"
no later than a certain day.
(d)
A statement that all applications will be made available for
public inspection during normal business hours at a specified location.
B.
Application request. At any time, a person may request an application
for a franchise from the Township for a cable television franchise.
C.
Request for proposals. Prior to inviting any applications for any
cable television franchise, the Township shall prepare a "request
for proposals" that shall contain, but need not be limited to, the
following:
(1)
A description of the cable television system and services desired
by the Township, including any cable television system specifications
established by the Township.
(2)
A statement specifying the form that all applications shall follow.
(3)
A statement indicating the amount of the application fee (if any)
to be submitted with the application, and the manner in which such
fee is to be submitted.
(4)
A statement that all applications must contain the information required
by the "request for proposal."
(5)
The closing date for the submission of applications.
(6)
The name, address, and telephone number of the Township official(s)
who may be contacted for further information.
D.
Franchise application. Any applicant for a franchise shall complete
the Township's request for proposal and provide the information required
therein.
E.
Requirement for public hearing on reasonable notice. The Township
shall conduct a public hearing prior to awarding or denying any cable
television franchise. The hearing shall be preceded by reasonable
notice to each of the franchise applicants and to the public, and
shall be conducted by the Township in accordance with the following
procedures:
(1)
There shall be an agenda for the hearing which shall specify the
proposal(s) to be considered at the hearing.
(2)
Every person who has applied for a cable television franchise shall
appear at the hearing either in person or by authorized representative.
The application of any applicant not so appearing shall not be further
considered, except for good cause shown.
(3)
All persons shall be given opportunity to participate in the hearing,
but nothing contained herein shall limit the power of the presiding
officer to establish reasonable time limits and otherwise limit repetitive
statements or questions.
(4)
The notice of hearing shall:
F.
Township discretion. As allowed by law, the Township, at its discretion,
may reject any application for a franchise. In awarding a franchise,
the Township shall allow the applicant's cable television system a
reasonable period of time to become capable of providing cable service
to all households in the franchise area; may require adequate assurance
that the cable operator will provide adequate public, educational,
and governmental access channel capacity, facilities, financial support
or institutional network facilities; and may require adequate assurance
that the cable operator has the financial, technical, or legal qualifications
to provide cable service.
A.
Commonwealth and federal law and regulation. This document hereby
incorporates by reference all orders, rules and/or regulations of
the Federal Communications Commission or other federal or commonwealth
agencies applicable to a cable television system and such other orders,
rules and/or regulations as any such agency or agencies may from time
to time adopt. Such regulations shall be a part of this document as
though the same were fully set forth at length herein. In the event
any such agency ceases to exist or revokes any applicable orders,
rules and/or regulations, said orders, rules and/or regulations shall
continue to apply to franchisee and this ordinance document unless
also revoked by the Township of Upper Makefield. In the event any
such agency ceases to exist, the Township of Upper Makefield shall
be the agency to which application should be made for any required
approval or certification.
B.
Television. If franchisee, or any subsidiary, parent or affiliate
corporation of franchisee is engaged in the business or activity of
selling, leasing, repairing or installing television sets or radio
receivers, cameras, audio or videotape machines, microphones, control
boxes, modulators or other television production equipment utilized
by users or subscribers in the operation of any cable television system,
franchisee shall not condition cable television service or the continuation
thereof or usage of access facilities on a subscribers purchase or
lease of, or failure to lease or purchase, any of such services or
equipment.
C.
Precedence. This Part shall take priority over other ordinances,
acts or statutes regulating cable television unless such ordinance,
act or statute specifically preempts regulation by Townships of the
Second Class. To the extent permissible by rules of statutory construction,
this Part shall be construed to supplement and/or implement any other
statute, act or regulation by any other agency regarding the provision
of cable television services either heretofore or hereafter enacted.
D.
Effective date conditions. Any franchise agreement entered into pursuant
to this Part shall become effective as specified in the franchise
agreement.
E.
Consent of the parties. Where consent of either party hereto is required,
it is deemed to be the intention of the parties in each case that
neither party may unreasonably withhold such consent.
F.
Cable Act. This Part is subject to the provision of the Cable Communications
Policy Act of 1984, as amended.
G.
Compliance with federal nondiscrimination laws. Franchisee shall
comply at all times with all other applicable federal, commonwealth
and local laws and regulations, and all executive and administrative
orders and rates relating to nondiscrimination which are hereby incorporated
and made part of this Part by reference.
