[Ord. 82-O-109, 6/21/1982, § 1; as amended by Ord.
84-O-132, 8/20/1984, § 1; by Ord. 86-O-147, 1/6/1986, § 1;
and by Ord. 98-O-11, 5/13/1998, § 1]
For the purposes of this Part, the following terms, phrases,
words and their derivation shall have 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.
Any other telecommunications service other than basic service,
provided over its system by the grantee directly or as a carrier for
its subsidiaries, affiliates or any other person engaged in communications
service including, by way of example but not limited to pay TV, home
and business protection systems, data or other electronic intelligence
transmission, facsimile reproduction, meter reading, home shopping
and other interactive services.
The delivery by the grantee to television receivers or any
other type of suitable audio-video communication receivers, of all
subscribers, and to all locations within the Township, of all signals
of over-the-air television broadcasters as required by the Federal
Communications Commission to be carried by a CATV system; the channels
designated for special purposes by the Township and agreed to by the
grantee; community access channels, audio signals as mandated by this
part and any other services.
The cost of the cable system less depreciation and exclusive
of the value of the franchise as certified by a Certified Public Accountant
selected by the Township at the expense of the Grantee.
A community antenna television system or a system of antennas,
cables, wires, lines, towers, waveguides, microwave, laser beams,
any optical or other conductors, equipment or facilities, designed
and constructed for the purpose of producing, receiving, amplifying
and distributing to and from subscribing members of the public who
pay for such service by audio, video, and other forms of electronic
or electrical signals in the Township. Such term shall conform to
the definition as definition as established by the Federal Communications
Commission.
Programming, exclusive of broadcast signals, carried on a
cable television system.
A nonaffiliated third party leasing a cable channel for the
presentation and distribution of local non-operator video/audio programs
or other video/audio communications over a cable channel for a specified
fee.
A cable channel leased to a non-affiliated third party to
permit presentation and distribution of local non-operator video/audio
programming or other video-audio communications to subscribers for
a specified fee.
The committee established jointly between Newtown Borough
and Newtown Township to act as an advisory body to the Newtown Borough
Council and the Newtown Township Board of Supervisors on matters pertaining
to CATV.
Programming, exclusive of broadcast signals, produced by
individuals, organizations and institutions expressly for telecasting
over community access channels.
Davis enterprises, or anyone who succeeds it in accordance
with the provisions of this Part.
That price which a seller, dealing at arms length, ready
and willing to sell and not compelled to sell, would accept for the
cable system when offered by a buyer, ready and willing but not compelled
to buy, exclusive of the value of the franchise.
Programming, exclusive of broadcast signals, carried on a
cable television system over one or more channels, and subject to
the exclusive control of the cable operator.
Any person, firm, partnership, association, corporation,
company, or organization of any kind.
All public rights of way and public grounds or waters within
or belonging to the Township, including but not limited to streets,
avenue, highways, boulevards, concourses, driveways, bridges, tunnels,
parks, parkways, waterways, docks, bulkheads, wharves, piers, and
alleys.
A purchaser of any service delivered over the CATV system
and includes those persons who are not required to pay any fee because
of their exemption from fees by this Part or through agreements with
the grantee.
The broadband communications facility which is to be constructed,
operated and maintained by the grantee in the Township.
Any and all compensation and other consideration in any form,
paid by anyone and received by the Grantee arising from the sale or
lease by the grantee, of the system's services, and received or derived
from the operations within the Township. Said sum shall not, however,
include any sales, service, rent, occupation or other excise tax to
the extent that such taxes are charged separately in addition to other
charges and are remitted by the grantee to the taxing authority.
A person or organization utilizing a system channel for purposes
of production and/or transmission of material, as contrasted with
receipt thereof in a subscriber capacity.
[Ord. 82-O-109, 6/21/1982, § 2]
Upon careful consideration of the qualifications of the applicants
and in consideration of the faithful performance and observance of
the conditions and reservations herein specified, Newtown Township
hereby grants to the grantee a non-exclusive franchise right, privilege,
authority and easement to erect, construct, operate and maintain,
in, upon, along, across, above, over and under streets, alleys, public
ways and public places now laid out or dedicated and all such extensions
thereof and additions thereto in the Township of Newtown, County of
Bucks, Commonwealth of Pennsylvania and public utility right-of-way
and easements to the extent the Township of Newtown, 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 CATV system
hereinafter sometimes referred to as a cable television system and/or
system, for the interception, sale, transmission and distribution
of television programs and other audio-visual electrical signals and
the right to transmit the same to the inhabitants of the Township
of Newtown, on the terms and conditions hereinafter set forth. Newtown
Township expressly reserves the right to grant similar use of said
streets, alleys, public ways and public places to any person at any
time during the period of this franchise.
[Ord. 82-O-109, 6/21/1982, § 3]
Subject to the provisions herein the rights and privileges of
the Grantee shall continue for a period of 15 years form the date
of adoption of this Part which shall be deemed to constitute an express
contract between Newtown Township and Grantee. At the end of the fifteen-year
term, the franchise may be extended by the Township for two additional
five year periods, (a total of 25 years), subject to the renewal procedures
more particularly set forth in § 412 herein. No system shall
be permitted to occupy within the Township without a CATV franchise
granted by the Township.
[Ord. 82-O-109, 6/21/1982, § 4]
The franchise granted herein is for the present territorial
limit of Newtown Township and for any areas henceforth added thereto
during the term of this franchise. The map attached hereto as Exhibit
"A" and marked in red defines the boundaries of the Township and the
boundaries of the franchise area which are deemed to be identical.
[Ord. 82-O-109, 6/21/1982, § 5; as amended by Ord.
86-O-158, 12/1/1986, § 1]
1.
Use of Streets, Pole Attachments.
A.
The grantee shall first obtain the approval of the appropriate Township
officials prior to commencing construction in the streets, alleys,
public grounds or places of the Township. The grantee shall give the
appropriate Township officials written notice of proposed construction
at least 10 days prior to such construction.
B.
The Company's rights and privileges shall be subordinated to any
prior lawful use or occupancy of the streets or other public property
and shall not be so used as to interfere with existing improvements
or with new improvements Newtown Township may deem proper to make,
or as to hinder or obstruct the free use of the streets, alleys, bridges,
or other public property. In the event any equipment or facilities
of Company shall interfere with any such improvement existing or intended
to be made by the Township, Grantee shall, upon notice from the Township,
forthwith relocate said equipment and facilities at Grantee's expense
so as to eliminate said interference.
C.
The Grantee shall not open or disturb the surface of any street,
sidewalk, driveway, or public place for any purpose without first
having obtained a permit to do so.
D.
Nothing in this agreement or any franchise granted hereunder, shall
authorize Grantee to erect and maintain for the Township new poles
where existing poles are servicing the area. The Grantee shall obtain
permission from the appropriate Township officials before erecting
any new poles or underground conduit where none exist at the time
the grantee seek to install its network.
E.
In the case of disturbance of any streets, sidewalk, alley, public
way, or paved area, grantee shall, at its own cost and expense and
in a manner approved by the Township Engineer, replace and restore
such street, sidewalk, alley, public way, or paved area to the same
or similar condition as existed prior to the disturbance.
F.
If at any time during the period of this Part the Township shall
lawfully elect to alter or change the grade or alignment or rerouting
of any street, sidewalk, alley, or other public way, Grantee, upon
reasonable notice by the Township, shall remove, relay, and relocate
its poles, wires, cable, underground conduits, manholes, and other
fixtures at its own expense.
G.
Any poles or other fixtures placed in any public way by Grantee shall
be placed in such manner as not to interfere with the usual travel
on such public way.
H.
Grantee 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 streets, alleys, sidewalks, and public
ways and places within the Township so as to prevent the branches
of such trees from coming in contact with its wires and cable.
I.
Grantee shall, at the request of any person holding a building moving
permit issued by the Township, temporarily raise or lower its wires
to permit the moving of a building.
J.
Grantee 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 sub-trunk 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 Council upon demand.
K.
Construction and maintenance of the transmission distribution system
shall be in accordance with the provisions of the National Electrical
Code, latest edition, or any amendments or revisions thereof and in
compliance with any applicable rules, regulations or order now in
effect or hereafter issued by any federal or state commission or any
other public authority (or utility) joint attachment practices.
L.
All installations of equipment shall be durable, of a permanent nature,
and installed in accordance with current best CATV system engineering
practices. Grantee, prior to the commencement of work, shall provide
the Township with CATV construction standards to be used in the construction
and installation of the system and said standards shall be incorporated
in this Part as fully as though the same were herein set forth at
length. Company shall comply with 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.
M.
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 in those areas of the Township
where public utilities providing both telephone and electric service
are underground at the time of installation. In areas where either
telephone and electric utility facilities are above ground at the
time of installation, the Grantee may install its service above ground
with the understanding that at such time as those facilities are required
to be replaced underground by the Township, the Grantee shall likewise
place its service underground.
N.
Grantee shall not begin any construction, modification, addition,
replacement, removal or any change whatever of any Township facilities
except ordinary and necessary repairs, without filing with the Township
a plan of such work and receiving approval from the Township therefor.
Prior to the institution of any work requiring opening, modification
or removal of any Township facilities (including roads), grantee shall
enter into a financial security agreement with the Township providing
financial security for the required work and providing for reimbursement
of reasonable engineering and inspection fees, legal fees and administrative
fees, occasioned by a review of the plans, the preparation of the
financial security agreement or otherwise. Such financial security
agreement shall be in the sum of 110% of the cost of the work plus
a reasonable provision for engineering, inspection, legal and administrative
fees. Such financial security agreement shall provide that if the
work is not completed in a timely fashion, that the Township may draw
down the financial security and complete the work itself with the
total cost thereof being borne by the grantee.
Nothing in this section should be construed as imposing on the
Borough the obligation to review and/or approve the design or construction
of the cable system itself or to assure compliance with any other
applicable statutes, ordinances or regulations in connection with
the design or installation of cable television systems, underground
or aerial facilities or any other regulatory obligation imposed by
State or Federal government, such obligations being the sole responsibility
of grantee. The purpose of this subsection is to insure restoration
of the property of the Borough and other public property to its prior
condition upon completion of the work and to minimize the impact of
the work on the public facilities of this Borough.
O.
The Township specifically reserves the right to vacate any right-of-way
they have given notwithstanding the existence of CATV construction
equipment or service lines within any such right-of-way. In the event
any such right-of-way is so vacated the Grantee at its own cost and
expense shall obtain and provide alternate means of providing service
to subscribers.
[Ord. 82-O-109, 6/21/1982, § 6]
1.
The grantee shall, within 12 months of the date of issuance of pole
permits by both Bell Telephone Company and Philadelphia Electric Company,
install and make operational in accordance with the provisions of
this Part and the grantee's application for said franchise, distributions
of cable along all areas within the limits of Newtown Township.
2.
The grantee shall offer service to all residences within the Township
limits recognizing technological and economic constraints which may
arise.
3.
Prior to the commencement of any construction of any part of the
system, the grantee shall submit to the Township a construction plan
showing the location and design of all construction proposed.
4.
The Township shall have the right to inspect all construction and/or
installation work that is performed by the Grantee.
5.
The grantee may interconnect, and is encouraged to interconnect directly
or indirectly by cable, microwave or other means, with any other cable
television system operating in an adjacent area. Such interconnections
shall be made upon mutual agreement by interested cable systems and
local regulatory agencies.
6.
If the Grantee fails to exercise diligence in the construction of
the system during the twelve-month period herein provided for its
construction, the Township may impose a surcharge upon the Grantee
in the amount of $1,000 for each month that the construction schedule
is not met.
[Ord. 82-O-109, 6/21/1982, § 7]
1.
The grantee shall construct a CATV System with sufficient bandwidth
that when used in conjunction with an appropriate device at the subscriber's
receiver shall enable the reception of a minimum of 52 downstream,
video channels.
A.
The channels shall be divided so as to have a minimum of 52 channels
of downstream capacity.
B.
The system shall have the capability of providing active bidirectional
return communications without any technical modifications or additions
to the transmission system.
C.
The system should have the capability from its inception of providing
a minimum capacity of four upstream television channels. Discreet
amplifiers shall be added as required for this upstream path.
D.
Maximum two way service capability shall be designed into the System
at its inception.
2.
The system shall include an Emergency Alert capability which will
permit authorized personnel to override the audio of all TV channels
simultaneously in accordance with Federal Communications Commission
regulations in the case of public emergencies such as, but not limited
to, nuclear holocaust, flood, major fires, war, third state pollution
alerts, and threats of the general well-being of the general public.
The grantee shall designate a channel which will be used for emergency
broadcasts.
3.
The grantee shall maintain equipment providing standby power for
the headend.
4.
The grantee shall provide standby powering of all trunkline amplifiers
and shall particularly take measures to insure reliable delivery of
signals into the Township.
5.
Every subscriber shall have the absolute right to deactivate the
return path from the subscriber's receiver at the Grantee's sole cost.
6.
The Grantee shall provide a two way separate institutional cable
which shall be for the use of the Bucks County Community College and
the Council Rock School District and such other private or public
institutions of learning as are now or may hereafter have institutions
in the Borough or Township of Newtown.
[Ord. 82-O-109, 6/21/1982, § 8]
1.
All performance and technical standards governing construction, reconstruction,
installation, operation, testing, use, maintenance and dismantling
of the cable system provided for herein shall be in accordance with
all applicable Federal Communications Commission and other Federal,
State, and Local laws and regulations, provided, however, that the
Township may require certain standards be met by grantee, including,
but not limited to the following:
A.
Produce a picture, whether in black and white or in color, that is
undistorted, free from ghost images, and accompanied with proper sound
of typical TV production sets.
B.
Transmit signals of adequate strength to produce good pictures with
good sound at all outlets without causing distortion in the cables
or interfering with other electrical or electronic systems or television
reception.
C.
Maintain at all times the technical standards provided in the Federal
Communications Commission Regulations, Section 76.604, as currently
in effect and as amended, and shall conduct performance tests as provided
in Federal Communications Commission Regulation, Section 76.601, as
currently in effect and as amended. Said tests shall be made available
to, and conducted with such consultants annually and may be required
by the Committee if repeated complaints of picture quality are received.
Township to participate in said testing. Said consultants shall have
the right to perform the testing in connection with, or independent
of, testing done by Grantee as required under Federal Communications
Commission Regulations. (The second sentence relating to testing is
to be compared with the original draft and was requested by the grantee
so that petty complaints would not cause need for expensive testing
but that testing could be required if complaints of picture quality
were persistent.)
D.
Grantee must provide service response seven days a week for all complaints
and requests for adjustments within 24 hours of receipt of such complaints
and requests provided they are attributable to the cable system. Complaints
and requests of all other nature shall be answered within 48 hours
after the complaints. Upon failure to remedy a loss of service attributable
to the cable system within 24 hours after complaint, Grantee shall
credit 1/30 of the regular monthly charge to the subscriber for each
24 hours or fraction thereof, after the initial 24 hours, until service
is restored.
E.
Whenever it is necessary to interrupt service for the purpose of
making repairs, adjustments or installation, Grantee shall do so at
such time as will cause the least amount of inconvenience to subscribers.
Unless such interruption is unforeseen and immediately necessary,
it shall give reasonable notice to affected subscribers. The requirements
for maintenance of equipment contained in this provision shall not
apply to the subscriber's television receiver.
[Ord. 82-O-109, 6/21/1982, § 9]
1.
As compensation for a franchise granted pursuant to this Part, and
in consideration of permission to use the streets and public ways
of the Township for the construction, operation, maintenance and reconstruction
of a cable system within the Township, Grantee shall pay annually
to the Township an amount equal to 5% of a Grantee's total local gross
revenue from all sources attributable to the operations of a Grantee
within the Township each year of this franchise. In the event that
the Federal law, in the future, permits, any other basis for computing
the franchise fee to be established, such basis, or any part thereof,
may be negotiated.
2.
Payments due to Township under this provision shall be computed by
the Grantee annually, based on Grantee's accounting methods. The payment
shall be due and payable to the Township no later than 30 days after
the relevant computation date. The payment shall be accompanied by
brief statement verified by the proper officer of the Grantee showing
the basis for the computation and such other relevant facts as may
be required by the Township. Failure to comply with this section shall
invoke the penalty procedures as stated in § 403 herein.
3.
No acceptance of any payment shall be construed as an accord that
the amount paid is, in fact, the correct 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 shall be subject to
an interest charge which shall at all times be 2% over and above the
prime rate of interest charged by the Central Penn National Bank to
its commercial customers. It is understood that this adjusted interest
rate shall become effective on the first day of the month immediately
following the official notice of such a rate change by the Central
Penn National Bank.
4.
In addition to the aforesaid franchise fee, Grantee shall reimburse
the Township for its initial cost for attorneys fees in connection
with the establishment of this franchise and reasonable engineers
and consultants fees concerning the establishment of standards in
connection with the franchise and such other reasonable professional
fees in the course of modification of the terms of this franchise
as may be necessary from time to time. Grantee shall also be responsible
for the payment of any professional fees where the Township is attempting
to, or has attempted to, enforce the provisions of this Part against
Grantee violating the terms and conditions hereof.
[Ord. 82-O-109, 6/21/1982, § 10; as amended by
Ord. 83-O-120, 5/2/1983, §§ 2 & 3; by Ord. 85-O-142,
7/1/1985, § 2; and by Ord. 97-O-23, 12/3/1997, § 1(3)]
1.
The Grantee's installation rates for all commercial facilities shall
be determined by negotiation between the Grantee and commercial subscriber.
2.
The Grantee shall not be permitted to charge a converter security
deposit fee greater than the grantee's cost of the converter. In the
event the grantee chooses to charge a security deposit fee, Grantee
shall pay to each subscriber, not less than annually, a rate of interest
equivalent to that currently being paid by commercial banks in the
Township on passbook savings accounts.
3.
For a period of 24 months from the date of this Part, the initial
rates specified in § 410(1) above shall not be increased
except for the following:
A.
Pay TV rates may be increased, from time to time to an amount not
in excess of two times the costs of the monthly program service which
is then paid by the Grantee for such service.
B.
The costs of basic service may be increased only by a factor equal
to two times the Grantee's direct cost of acquiring additional programming
over and above the programming initially supplied by grantee to grantee's
first customers and an amount equal to two times any increases in
the direct cost of programming which is included within the grantee's
initial service to customers. As used in this paragraph, direct cost
of programming only includes the direct monthly payment by the Grantee
to program suppliers.
4.
After twenty-four months from the date of this Part, the grantee
shall be permitted to make increases in the charges for its service
without prior approval of the Township Supervisors provided that such
increase shall not be in excess of the following limitations:
A.
Grantee shall be permitted to increase charges for Pay TV so long
as the monthly charge to the customer does not exceed two times the
Grantee's direct cost of acquiring such programming.
B.
The monthly charge for basic service may be increased in an amount
not greater than two times the grantee's direct cost of programming
included within the basic service; such increase to be measured by
the direct cots of programming at the time the grantee connects its
initial customers to the month preceding the month during which such
increase shall be effective. In addition, the basic monthly service
charge may be increased, from time to time, by an additional amount
provided that such additional increase shall not represent more than
a 10% annual increase (which shall be in addition to the increase
permitted by the preceding provisions of this subparagraph.) The 10%
increase shall be determined by combining the basic monthly charge
with the same charge which was made 13 months previously.
5.
In addition to the foregoing increases for Pay TV and basic charge,
the Newtown Township Supervisors may permit additional increases on
the basis of what is fair to the consumer and to the grantee. Such
review shall include, but shall not be limited to, the following factors:
A.
Compliance of the operator in abiding by the terms of this Part,
the quality of the service, efficiency of the operator; revenues and
profits from all services offered; depreciated original cost of the
cable plant and associated equipment; and a fair rate of return on
investments having corresponding risk.
B.
Approval by the Supervisors of Newtown Township shall be made within
60 days from application and approval shall be made by resolution
of the Board of Supervisors with the same notice as provided for herein
which approval shall not be unreasonably withheld.
6.
The grantee shall not deny, delay, interrupt or terminate cable services
or the use of community access facilities to subscribers or users
because a request for an increase in the base rate has been denied.
7.
Whenever the Township is presented with a request for the grantee
to increase Pay TV and/or basic charges in excess of the automatic
increases permitted by this Part, the Township shall request that
the cable operator give notice within 10 days of a public hearing
to the general public between the hours of 7:00 and 9:00 p.m. for
seven consecutive days on all activated local origination access channels
of the cable system of where and when the rates to be reviewed may
be examined. Written comments may be filed with the Township and grantee
by any person within 30 days from the final date of notice. A written
reply to the comments must be filed within 15 days. The Township shall
decide the reasonableness of rates and shall have the right to request
from Grantee such information as may be necessary to determine whether
a rate change is reasonable.
8.
The grantee shall annually file with the Township a full schedule
of all subscriber and user rates and all other charges such as, but
not limited to, Pay TV, lease channel and discreet services made in
connection with the system. Any special rates for large institutions,
motels, multiple-family dwelling units, or any other type of subscriber
shall be included. All rates shall be published and non-discriminatory.
9.
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.
10.
Grantee may require all subscribers to pay for each month of basic
service in advance at the beginning of each month.
11.
There shall be no charge for disconnection of any installation or
outlet. If any subscriber fails to pay a properly due monthly subscriber
fee, or any other properly due fee or charge, the Grantee may disconnect
the subscriber's service outlet, providing that the grantee has notified
the subscriber.
12.
If the grantee collects a deposit on any service requested by a subscriber
or users, the grantee shall provide such service within 30 days or
refund within the next five days all deposit or advance charges paid
for the service in question by said subscriber to user. This provision
does not alter a grantee's responsibility to subscribers and users
under any contractual agreements separate from this Part the grantee
might have the subscribers or users or relieve a grantee of liability
for fines under this Part that may be assessed or damages that might
result to the Township or any subscriber because of a grantee's failure
to provide a service promised.
13.
If a subscriber terminates basic service prior to the end of a prepaid
period, a pro-rated portion of any prepaid subscriber service fee,
using the number of days as a basis shall be refunded to the subscriber
by a grantee.
14.
Rates charged for 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 to do so
would cause an unlawful result.
15.
In the event that a resident desires connection and grantee determines
that more than 200 feet of connecting cable is required to be laid
across the resident's private property in order to so connect the
resident, then grantee shall provide the additional labor and materials
required to connect the resident in excess of 200 feet at cost to
the subscriber.
[Ord. 82-O-109, 6/21/1982, § 11]
1.
Grantee shall complete construction of Cable TV Distribution System
within the twelve-month time period as defined in § 406(1)
above. The system shall be deemed completed when the head-end is installed
and all of the trunk lines shown on the plan dated the 1st day of
June 1982, incorporated herein by reference are installed and energized.
In order to insure diligent performance of this obligation hereunder,
the Grantee shall provide quarterly written progress reports to the
Township Supervisors, which progress reports shall include an estimated
completion date for the system. In the event the grantee shall have
been diligent during the 12 month period, the grantee shall be entitled
to an automatic grace period, the system shall still not be completed,
the Township (unless further grace period is granted) reserves the
right to terminate and cancel the franchise hereby granted and all
the rights and privileges of the grantee hereunder in accordance with
the following procedures:
A.
The Township shall notify the grantee in writing by certified mail,
return receipt requested, of the alleged default. The grantee shall
have 30 days subsequent to the receipt of the notice to cure the violation(s).
B.
If the grantee does not respond or, upon receipt of the grantee's
response and/or evidence of correction of the violation, if the Township
concludes that a basis for termination still exists, it shall notify
the grantee thereof by certified mail, return receipt requested, and
indicate the date on which a public hearing shall be held pursuant
to 10 days public notice in a newspaper of general circulation.
C.
At that public hearing, the grantee shall be afforded an opportunity
to explain the reasons for the alleged violation(s). Upon conclusion
thereof, the Township may terminate the franchise or direct the grantee
to comply within such time and manner and upon such terms and conditions
as the Township may direct.
D.
If this franchise is terminated in accordance with the foregoing
procedures, that part of the system then installed shall become the
property of the Township for a price or consideration equal to the
costs of the system then installed. For this purpose, cost shall include
direct costs of labor and material excluding any interest or management
fees or salaries. If such determination of 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.
2.
If at any time the grantee requests renewal of this franchise and
such renewal is not granted, the Township shall purchase the entire
system for fair market value. Such fair market value shall be the
fair market value of all tangible and intangible property forming
part of the system as a going business. If the Township fails to purchase
the system within 90 days after such non-renewal of the franchise
(during which time the grantee may continue to exercise the franchise)
the Township shall either renew the franchise or permit the grantee
to arrange a purchase of the system by any other party subject to
approval of such party by the Township Supervisors, which approval
will not be unreasonably withheld, which purchaser shall receive a
renewed franchise.
3.
Prior to commencement of installation of any part of the system,
grantee shall deliver to the Township Supervisors a written instrument
duly executed by the grantee containing the following provisions:
A.
That the grantee agrees to be bound by the terms of this Part and
faithfully to perform its obligations hereunder.
B.
That it consents to the jurisdiction of the Court of Common Pleas
of Bucks County, Pennsylvania, to grant orders specifically enforcing
the provisions of this Part against the grantee.
C.
That the grantee agrees to pay and discharge all reasonable counsel
fees and costs which the Township may incur in specifically enforcing
the provisions of this Part.
[Ord. 82-O-109, 6/21/1982, § 11A]
The Township may order the grantee to restore the streets to
a condition the same as existed prior to System construction excluding
any improvements made to said streets subsequent to System construction.
The Township Engineer shall cause such streets to be examined prior
to any construction by the Grantee and shall provide a report on the
condition of such street to the Township and the Grantee. With regard
to non-public property, the Grantee shall restore such property to
a condition the same as existed prior to System construction excluding
any improvement made to such property subsequent to System construction.
Restoration of public streets shall be approved by the Township Engineer.
Costs for restoration of private property and public property shall
be borne by the grantee.
[Ord. 82-O-109, 6/21/1982, § 12]
1.
Twelve months prior to the expiration of the franchise, the Township
shall receive the performance of the Grantee in accordance with this
Part and shall review the content of the Part itself for its sufficiency.
2.
The Township shall proceed to determine at a public hearing whether
the Grantee has satisfactorily performed its obligations under the
franchise after giving 10 days public notice, in a newspaper of general
circulation, including notification to the grantee. To determine satisfactory
performance, the Township shall review technical developments and
performance of this system, programming, additional services offered,
costs of service, fiscal and customer relations and technical audits,
and any other particular requirement that may be set forth in this
Part.
3.
Following the review set forth in § 412(2) of this section,
the Township may elect (i) to award grantee a five-year term franchise
extension pursuant to the terms and conditions of § 403
of this Part, as amended; or (ii) purchase the System; or (iii) permit
the purchase of the system by another party; or (iv) permit the franchise
to expire.
4.
In the event of the cancellation or expiration of the franchise,
the Township may direct the Grantee to operate the System for the
account of the Township for a period of six months and the grantee
agrees to comply with such direction. The Township shall pay the Grantee
all reasonable and necessary costs incurred by the Grantee in operating
such System. Such costs shall be determined by an impartial audit
of the grantee and agreed upon by both the grantee and the Township.
[Ord. 82-O-109, 6/21/1982, § 13; as amended by
Ord. 83-O-120, 5/2/1983, § 4; by Ord. 84-O-132, 8/20/1984,
§§ 2-5; by Ord. 85-O-142, 7/1/1985, §§ 1
and 3; by Ord. 86-O-147, 1/6/1986, §§ 2 and 3; by Ord.
98-O-11, 5/13/1998, § 1; and by Ord. 2004-O-4, 3/10/2004]
1.
There is hereby established an advisory committee for telecommunications
to include: cable/wireless television, broadband/wireless internet
access and local telephone services in Newtown Borough and Newtown
Township which shall be known as the "Newtown Area Telecommunications
Advisory Committee."
2.
The Committee shall be composed of seven members, five of whom shall
be residents of Newtown Township and two of whom shall be residents
of Newtown Borough. Terms of members shall be for three years. Any
vacancy shall be filled by the Borough Council or the Board of Supervisors,
as the case may be, by appointment for the remainder of the term.
No employee or person with ownership interest in any company providing
the listed services (above) shall be eligible for membership on the
Committee. The Chair of the Committee shall be elected by the members
of the Committee for a term of one year. Action of the Committee shall
require concurrence of at least four of its members. The Grantee shall
be an ex-officio but nonvoting member of the Advisory Committee. The
Committee shall have the following functions:
A.
Explore and advise on open and non-discriminatory access to all telecommunications.
B.
Advise the Borough and Township on applications for franchises and
on franchise renewals.
C.
Advise the Borough and Township on matters which might be grounds
for revocation of the franchise or imposition of penalties on the
Grantee in accordance with this Part.
D.
Assist in resolving disagreements among customers and telecommunication
providers or, if applicable, between two or more telecommunications
providers.
E.
Advise the Borough and Township in respect to cable rates, to policy
relating to the services provided to subscribers, and to the operation
and use of public and institutional cable channels, and to the availability
of channel time for lease for pay-cable programs, business users,
and informational programming.
F.
Cooperate with other systems and supervise interconnection of systems.
G.
Audit all grantee records as required by this Part and, require preparation
and filing of information additional to that required herein.
H.
Make an annual report to the Borough and Township including an account
of franchise fees received and distributed, the total number of hours
of utilization of public channels, and hours sub-totals for various
programming categories.
I.
Review any plans submitted during the year by the Grantee for development
of new services.
J.
At the request of the Board of Supervisors or Borough Council, conduct
an evaluation of the cable system in consultation with the Grantee
and utilizing technical consultants if necessary, which shall be paid
for from fees received by the Borough and Township from the Grantee
and pursuant thereto make recommendation to the Borough and Township
for amendments to this Part.
K.
Monitor emerging telecommunications standards and new technologies
to address new community needs and provide maximum service and reasonable
cost via the promotion of competition.
L.
Review and address matters concerning aesthetics in equipment and
installation as permitted by law.
M.
Strive to improve service by expanding services and addressing (group)
problems with local telephone, cable/wireless television and broad
band/wireless internet services.
[Ord. 82-O-109, 6/21/1982, § 14; as amended by
Ord. 86-O-158, 12/1/1986, § 2]
1.
The grantee shall indemnify and save the Township, its agents and
employees, harmless from and against all claims, damages, losses and
expenses including, but not limited to, attorneys' fees sustained
by the Township, its agents and employees, on account of any suit,
judgment, execution, claim or demand whatsoever arising out of the
installation, operation or maintenance of the CATV system authorized
herein and/or copyright infringements and/or any other damages alleged
to arise from Township's grant of this non-exclusive franchise to
construct a CATV system, and is caused in whole or in part by a negligent
act or omission of the grantee, his 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 a party indemnified hereunder, and whether or not any act
or omission complained of is authorized, allowed or prohibited by
the ordinance and the franchise granted hereunder.
2.
The grantee shall pay and by its acceptance of this franchise specifically agrees that it will pay all expenses incurred by the Township, its agents and employees, in any defense with regard to all damages and penalties mentioned in subsection (1) above. These expenses shall include all out-of-pocket expenses such as attorneys' fees of the Township and its agents and employees and shall also include the reasonable value of any services rendered by the Township Solicitor and/or the Township Solicitor's assistants or consultants, any employees of the Township.
3.
Grantee shall maintain and by its acceptance of this franchise specifically
agrees that it will maintain throughout the terms of this franchise
liability insurance insuring the Township and Grantee with regard
to all damages mentioned in § 401(1) above in the minimum
amounts of:
A.
One million dollars for bodily injury or death to any one person,
within the limit, however, of $2,000,000 for bodily injury or death
resulting from any one accident.
B.
Five hundred thousand dollars for property damages resulting from
any one accident.
C.
One hundred thousand dollars for infringement of copyrights.
D.
One hundred thousand dollars for all other types of liability.
4.
Grantee shall maintain, and by its acceptance of this franchise specifically
agrees that it will maintain throughout the term of this franchise
a faithful surety performance bond running to the Township in the
penal sum of $100,000 conditioned that the grantee shall complete
construction of the system as provided in this agreement and upon
completion to be reduced to the penal sum of $50,000 conditioned that
the Grantee shall well and truly observe, fulfill and perform each
term and condition of this Part and that in case of any breach of
the condition of either bond, not cured by the Grantee as provided
herein, the amount thereof shall be recoverable from the principal
and surety thereof by the Township for all damages resulting from
the failure of grantee to well and faithfully observe the condition
of the bonds. Further reduction in the $50,000 bond shall be exclusively
within the discretion of the Township Supervisors.
5.
The insurance policies and bond obtained by the grantee in compliance
with this section shall be approved by the Township. Such insurance
policies and bond, along with the written evidence of payment of required
premiums, shall be filed and maintained with the Township Secretary
during the term of this Part.
6.
All expense of the above-noted insurance and bond shall be paid by
the Grantee.
7.
The insurance policies mentioned herein shall contain an endorsement
stating that the policies are extended to cover liability assumed
by the Grantee under the terms of this Part and shall contain the
following endorsement:
"Cancellation or reduction of any requirement for insurance
herein shall be termed default of this Part and subject to the grantee
to termination of the franchise as provided herein."
8.
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 the
grantee or limit the liability of the grantee under the franchise
issued hereunder or for damages either to the full amount of the bond
or otherwise.
[Ord. 82-O-109, 6/21/1982, § 15]
1.
CATV basic service shall be made available to substantially all individual
dwellings, residences, institutions, organization's 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
and passage.
2.
Installations and service fees shall be equal for all basic service
subscribers. Installation or subscriber use of CATV 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 the grantee and the subscriber.
3.
Residential installation shall occur as an activated or reactivated
feeder line passes the home or dwelling, upon request of the resident.
4.
Each class of subscriber service shall be offered cable television
service on a uniform, non-discriminatory basis within said class.
5.
All cable equipment shall be removed from a subscriber's property
when so requested by a subscriber except as such removal would interfere
with the provisions of cable services to another subscriber in the
same structure.
6.
Cable, whether underground or aerial, shall conform to the various
other ordinances in effect within the Township pertaining to construction.
7.
The system shall be designed for reliable operation 24 hours per
day and shall ensure service impairment of interruption only for good
cause. Interruptions of service shall be for the shortest times possible.
8.
The Grantee shall maintain an office in either Newtown Borough or
Newtown Township and shall be open to the general public during all
usual business hours.
9.
The grantee shall have a publicly listed telephone. The grantee shall
maintain a twenty-four-hour answering device or operator each day
of the year in order to receive subscriber complaints. A record shall
be kept by the grantee listing each and every subscriber complaint
received. Said record shall be available for inspection upon request
at the office of the Township Secretary and shall be kept for a year.
A written summary shall be given the Township annually on the anniversary
date of the awarding of the franchise.
10.
The grantee shall maintain a repair and troubleshooting force capable
of responding to subscriber complaints and/or requests for cable system
repairs within 24 hours as a maximum after the receipt of the complaint
and/or request.
A.
There shall be no charge to the subscriber for this service. The
Grantee shall maintain a record on the disposition of all complaints
and/or requests for repairs and shall provide an annual summary to
the Township within 30 days of the anniversary date of the awarding
of the franchise.
B.
Said record shall be available for inspection upon reasonable notice,
but in no case less than four times annually.
11.
The grantee shall not deny nor delay service, deny or delay access,
or otherwise discriminate against subscribers, channel users, or general
citizens on any basis whatsoever.
A.
The grantee shall strictly adhere to the Equal Employment Opportunity requirements of the Federal Communications Commission as expressed in Section 76.13(a)(8) and 73.311 of Chapter I, Title 47 of the Code of Federal Regulations and all Federal, State and local laws, regulations and executive orders pertaining to equal employment opportunity and affirmative action programs and nondiscrimination.
B.
The grantee shall comply with all provisions of the Equal Employment
Opportunity Act as the same may be from time to time amended.
12.
The grantee shall not tabulate any test results, nor permit the use
of its cable system for such tabulation, which would reveal the commercial
product preferences 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.
13.
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 area where both utilities are to be placed
underground, exclusive of all electronic cable television facilities,
the grantee shall similarly comply and shall install system concurrently
with the installation of the underground power and telephone utilities.
14.
Upon the reasonable request for service by any person within the
Township, the grantee shall, within 30 days, furnish the requested
service to said person providing the location of the requested service
is within an area serviced by a feeder line.
15.
If a subscriber requests installation or extension of cable and grantee
fails to install or extend it within three months 90 days after the
system is completed, such a failure shall be considered a breach of
a condition of this Part. Continuing failure to install and/or extend
cable system service during any subsequent three months 90 days period
shall constitute a separate breach of a condition of this Part, provided,
however, that there shall be no obligation to extend service more
than 200 feet from existing cable to a subscriber without the subscriber's
contribution to the cost of such extension. (This request we felt
was reasonable under all the circumstances.)
16.
Any subscriber who has a complaint regarding the quality of cable
television service, equipment malfunctions, buildings, or any other
matter which remains unresolved for 30 days after it has been brought
to the grantee's attention, in writing, may file a compliant in writing
with the Township who shall have the primary responsibility for the
continuing administration of complaint procedure hereunder.
17.
Upon filing of such a complaint, the Township shall notify the grantee
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 complaint, the
Township shall so notify the grantee and the complainant, and shall
promptly endeavor to resolve the matter by conciliation and persuasion.
[Ord. 82-O-109, 6/21/1982, § 16]
1.
Grantee shall provide each public, private and parochial school and
college, fire stations, rescue squads, public ambulance garages, public
and private libraries, and Township buildings and such public auditoriums
and institutions as are requested by the Township with a single drop
and service without charge. Additional drops and service will be charged
to the facility by the grantee at a cost of time and material only.
2.
Grantee 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 system and shall provide a minimum service
offering as follows:
A.
Public Access Channel. Grantee shall maintain at least one specially
designated, non-commercial public access channel available on a first-come,
non-discriminatory basis.
B.
Educational Access Channel. Grantee shall maintain at least two specially
designated channels for use by local educational authorities.
C.
Local Government Access Channel. Grantee shall maintain at least
one specifically designated channel for local government uses.
D.
Leased Access Channel. Grantee shall maintain at least one specifically
designated channel for leased access uses. In addition, other portions
of its non-broadcast bandwidth, including unused portion of the specially
designated channel shall be available for leased uses. On at least
one of the leased channels, priority shall be given part-time users.
Operations of a commercial leased channel shall not in any way cause
interference to any other cable channel. It shall be the responsibility
of the commercial channel lessee to avoid such interference. In the
event that such avoidance is not possible, the commercial channel
lessee shall cease further operations until such interference is eliminated.
Failure to comply with this regulation shall result in the immediate
forfeiture of all privilege regardless of the existence of any lease,
claim or contract or other claim or right.
3.
Program Origination. Grantee shall conduct program origination cable
casting, in addition to any automated services.
4.
Grantee shall provide both portable and stationary equipment to be
used by access cable casters with the aid of a technical and production
staff to be provided by grantee. Included should be equipment that
can store programs for later showing. In addition, a centrally located
studio must be made available to all access users on a first-come,
first-served basis. A full schedule of rates for use of equipment,
studio, and technical and production staff must be provided, including
rates for portable facilities if they differ. Rates may give preference
to non-commercial users.
5.
The Grantee shall in no way restrict the content or message of any
program presented over any of the community access channels. There
are, however, subjects which are specifically prohibited by this Part
from being distributed, telecast and/or cablecast via the cable system.
6.
The following material(s) are specifically prohibited from being
distributed, telecast and/or cablecast on any and all community access
channels:
A.
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.
B.
Any lottery information, gift enterprise or similar scheme, offering
prizes dependent in whole or in part upon lot or change, 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 any lottery, gift enterprise or similar scheme if, in connection
with such programs, a prize consisting of money or a thing of value
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 have in their
possession any product sold, manufactured, furnished or distributed
by a sponsor of any program transmitted via the cable system.
C.
Any material that is obscene or indecent.
D.
The grantee shall refuse to distribute via the cable system community
access programming or leased channel programing that he deems to be
obscene or indecent or otherwise prohibited from such publication
by law.
7.
All users of any and all community access channels shall be responsible
for all necessary appropriate arrangements with, and shall obtain
all appropriate clearances from broadcast station's networks, sponsors,
music licensing organization, performers, representative and, without
limitation from the foregoing any and all other person, natural and
otherwise, as may be necessary to transmit their program material
over the cable television system.
8.
In recognition of the fact that the grantee shall exercise no editorial
control over the content of program material to be transmitted via
the cable system, except as provided for herein, all users of any
and all community access channels shall agree to hold the grantee
harmless from any and all liability or other injury (including any
reasonable costs of defending claims or litigation) arising from or
in connection with claims for failure to comply with any applicable
laws, rules, regulations or other requirements of local, State or
Federal authorities; for claims of libel, slander, invasion of privacy,
or the infringement of common law or statutory copyright; for unauthorized
use of any trademark, trade name or service mark; for breach of contractual
or other obligations owing to third parties by the franchisee; and
for any other injury or damage in law or equity, which claims result
from the user's use of the community access channels.
[Ord. 82-O-109, 6/21/1982, § 17]
1.
No later than 60 days following the close of its fiscal year the
grantee shall submit a written report to the Township which shall
include, but not be limited to:
A.
A summary of the previous year's activities in development of this
system, including but not limited to service begun or dropped, subscribers
gained or lost.
B.
Upon request, a financial statement including a statement of income,
a balance sheet, and a statement of sources and applications of funds.
C.
A list of subscribers with names and addresses and level of service.
D.
A summary of service calls and letters of complain, identifying the
number and nature of problems and their disposition.
(1)
Names of individual complaints may be requested by Township
or the Council for the purposes of ascertaining the specifics of individual
complaints.
E.
Upon request, a list of officers and members of the board of a Grantee
and the parent corporation.
F.
Copies of company proof of performance.
[Ord. 82-O-109, 621/1982, § 18]
1.
The franchise herein granted is personal to the grantee. It cannot
be transferred, leased, assigned or disposed of as a whole, or in
part either by forced sale, merger, consolidation, or otherwise, without
prior written consent of the Township expressed by ordinance and then
only under such conditions as may be therein prescribed.
2.
Any foreclosure or judicial sale of all, or any part of the System
shall be considered default. Initiation of any such proceedings shall
be treated as a notification of change of control of the Grantee.
3.
The Township Supervisors shall have the right to cancel this franchise
120 days after the election or appointment of a receiver or trustee
to take over and conduct the business of the Grantee, 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:
A.
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
B.
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.
[Ord. 82-O-109, 6/21/1982, § 19]
1.
This document hereby incorporates by reference all order, rules and/or
regulations of the Federal Communications Commission or other Federal
or State 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
order, rules and/or regulations, the said orders, rules and/or regulation
shall continue to apply to the grantee and this franchise document
unless also revoked by the Township of Newtown. In the event any such
agency ceases to exist the Township of Newtown shall be the agency
to which application should be made for any required approval or certification.
2.
If the grantee, or any subsidiary, parent or affiliate corporation
of the grantee is engaged in the business or activity of selling,
leasing, repairing or installing television set or radio receivers,
cameras, audio or video tape machines, microphones, control beeps,
modulators or other television production equipment utilized by users
or subscribers in the operation of any cable television system, the
grantee shall not condition cable television service or the continuation
thereof or usage of community access facilities on a subscriber's
purchase or lease of, or failure to lease or purchase, any of such
services or equipment.
3.
The Grantee shall at all times during the life of this franchise,
and any extensions thereof, be subject to all lawful exercise of the
police power of the Township of Newtown, and to such reasonable regulations
as the Township may hereinafter provide, and shall comply with all
applicable State and Federal regulations.
4.
In order to allow for technological changes in the state of the art
regarding CATV, and to facilitate renewal procedures, allow for maximum
degree of flexibility in the System, and to help achieve a continuing,
advanced, modern system for the Township, the Grantee shall provide
for the following review provisions:
A.
The Township and Grantee shall hold a scheduled review session within
30 days of the first anniversary date of the Grantee's execution of
the franchise ordinance. Subsequent review sessions shall be scheduled
every year thereafter. All such review sessions shall be open to the
public and announced in a newspaper of general circulation.
5.
Copies of all petitions, applications and communications submitted
by the Grantee to the Federal Communications Commission, Securities
and Exchange Commission or agency having jurisdiction in respect to
any matters affecting the Company's operations authorized pursuant
to this franchise, shall also be submitted simultaneously to the Township.
6.
To the extent that any federal or state agency with jurisdiction
shall impose, modify or terminate controls in any area pertinent to
this Part, the Part shall be construed as not to conflict therewith
while it is in process of amendment or repeal as the Township may
elect.
7.
If any section, subsection, sentence, clause, phrase or portion of
this Part is for any reason held invalid or unconstitutional by any
Court of competent jurisdiction, such portion shall be deemed a separate,
distinct and independent provision and such holdings shall not affect
the validity of the remaining portions hereof.
8.
Every direction, notice or order to be served upon the Grantee shall
be sent by Certified Mail to its officers located in the Borough or
Township. The mailing of such notice, direction or order shall be
equivalent to address personal notice, direction or order.
9.
There shall be no automatic right of renewal of the franchise rights
granted hereunder.
10.
Nothing herein contained shall be construed to be a representation
by the Township or any of its officers, agents or employees, that
the authorization of this non-exclusive franchise is within the authority
of the Township to grant. It is fully understood that the Township
shall not be liable for any cost of any kind incurred by the Grantee
resulting from any portion of this Part being held invalid, unauthorized,
or unconstitutional, nor shall the Township be obligated to litigate
the validity of this franchise unless the cost thereof shall first
be guaranteed by the grantee in a manner satisfactory to the Township.
[Ord. 98-O-10, 5/18/1999, § 1]
A proposed change in a cable operator's existing rates for
the basic service tier and associated equipment costs using the annual
filing system pursuant to § 76.922(e) and § 76.923
of the Federal Communications Commission rules.
The basic service tier shall, at a minimum, include all signal
of domestic television broadcast stations provided to any subscriber
[except a signal secondarily transmitted by satellite carrier beyond
the local service area of such station, regardless of how such signal
is ultimately received by the cable operator(s)], any public, educational
and governmental programming required by the franchise agreement to
be carried on the basic tier and any additional video programming
signals or services added to the basic tier by the cable operator(s).
Cable Television Consumer Protection and Competition Act,
Pub. L. No. 102-385, 106 Stat. 1460 (1992).
All cable television operators who are party to a current
franchise agreement with the franchising authority.
Any video programming provided over a cable television system,
regardless of service tier, including installation or rental of equipment
used for the receipt of such video programming other than:
Video programming carried on the basic service tier.
Video programming offered on a pay-per-channel or pay-per-program
basis.
A combination of multiple channels of pay-per-channel or pay-per-program
video programming offered on a multiplexed or time shifted basis so
long as the combined services: (i) consists of commonly identified
video programming; and (ii) is not bundled with any regulated tier
of service.
The certification received by the franchising authority from
the FCC, empowering the franchising authority to regulate certain
cable television rates.
A rate application filed in the manner prescribed and on
the forms adopted by the FCC. A cost-of-service rate application may
be submitted by a cable operator(s), in its sole discretion in support
of its current rates or a proposed rate increase.
Those rates in effect for the basic service tier and for
the equipment and installation necessary to receive the basic service
tier, existing on the date when the franchising authority notifies
the cable operator(s) that it has received certification.
The Federal Communications Commission.
The agreement between one or more cable operator(s) and the
franchising authority pursuant to which the cable operator(s) was
granted a franchise to offer cable television services to subscribers.
Township of Newtown.
Those rates against which all rate applications shall be
measured. The maximum permitted rates shall be determined consistent
with the rules adopted by the FCC.
An opinion issued by the franchising authority in response
to any rate application.
An order issued by the franchising authority advising the
cable operator(s) and other interested parties of the franchising
authority's intent to take additional time to review and approve or
disprove any rate application.
The rate prescribed by the franchising authority for the
basic service tier and/or for the equipment and installation necessary
to receive the basic service tier, which may differ from the proposed
rate submitted by the cable operator(s) in a rate application.
A reduction by the franchising authority in the current rates
charged by the cable operator(s).
An application on the form adopted by the FCC to be submitted
by the cable operator(s) for approval of its current rates and/or
any proposed increase in the rates for the basic service tier and/or
for the equipment and installation necessary to receive the basic
service tier.
Any refund ordered by the franchising authority of rates
charged for the basic service tier and/or the rates for the equipment
and installation necessary to receive the basic service tier pursuant
to the terms contained in § 424(4)(B).
A customer of the cable operator(s) receiving cable television
service within the geographic boundaries of the franchising authority.
[Ord. 98-O-10, 5/18/1999, § 2]
1.
The franchising authority is hereby empowered to make application
for certification with the Federal Communications Commission ("FCC")
to regulate cable television rates for the basic service tier, the
equipment and installation necessary to receive the basic service
tier and to provide notice to the cable operator(s) of its application
for certification. Application shall be made in the manner and on
the forms adopted by the FCC and notice shall be provided to the cable
operator(s) before or on the same day of filing of the application.
2.
Upon the effective date of certification the franchising authority
shall provide notice to the cable operator(s) of its certification,
its intention to regulate rates for the basic service tier and the
equipment and installation necessary to receive the basic service
tier.
3.
In the event that the franchising authority shall not obtain certification
or that its certification shall be reconsidered and revoked, the franchising
authority is hereby authorized to take such steps as are necessary
to receive certification.
[Ord. 98-O-10, 5/18/1999, § 3]
Pursuant to the power and authority granted to the franchising
authority under the Cable Act of 1992, its certification by the FCC
for regulating rates for the basic service tier and rates for the
equipment and installation necessary to receive the basic service
tier and other charges which may be regulated by the franchising authority
pursuant to the regulations adopted by the FCC under the Cable Act
of 1992, the franchising authority shall exercise regulatory power
over the rates charged or to be charged to a subscriber for the basic
service tier and for the equipment and installation necessary to receive
the basic service tier applicable to those subscribers of the cable
operator(s).
[Ord. 98-O-10, 5/18/1999, § 4]
1.
Initial Procedures.
A.
The cable operator(s) shall give notice to its subscribers within
90 days (or three billing cycles) of the effective date of the rules
adopted by the franchising authority and all new subscribers at the
time of installation of the availability of the basic service tier.
B.
Each cable operator shall submit a rate application to the franchising
authority for approval of that cable operator's current rates for
the basic service tier and for approval of its rates for the equipment
and installation necessary to receive the basic service tier and for
approval of any proposed rate increase.
(1)
The rate application for approval of current rates for the basic
service tier and the rates for the equipment and installation necessary
to receive the basic service tier shall be filed within 30 days of
notice from the franchising authority to the cable operator(s) that
the franchising authority has been certified by the FCC and has adopted
the regulations required by the FCC for rate regulation.
(2)
The rate application for any proposed increase in rates for
the basic service tier or for the equipment and installation necessary
to receive the basic service tier, other than an annual rate adjustment,
shall be filed a minimum of 30 days before the effective date of the
proposed increase.
(3)
A cable operator that submits for review an annual rate adjustment
for the basic service tier and associated equipment costs shall do
so no later than 90 days from the effective date of the proposed rates.
(4)
Included in a rate application shall be such information as
is set forth in the application form adopted by the FCC.
(5)
The cable operator(s) shall submit any relevant information
as is permitted by FCC rules, as contained on the application and
worksheets adopted by the FCC for rate applications, and which the
cable operator(s) would like the franchising authority to consider
in evaluating the current rates for the basic service tier and/or
for the equipment and installation necessary to receive the basic
service tier and/or in evaluating any proposed rate increase of those
same items.
(6)
If the current rates for the basic service tier and/or for the
equipment and installation necessary to receive the basic service
tier or any proposed rate increase exceeds the maximum permitted rates,
the cable operator(s) may submit a cost-of-service rate application
in conformity with FCC rules. Only the cable operator(s) may decide
whether to submit a cost-of-service rate application.
C.
The cable operator shall give written notice to its subscribers that
a rate application has been filed at least 30 days prior to the effective
date of any proposed rate increase. In the case of an annual rate
adjustment rate application, the cable operator may give subscribers
notice of the proposed rate changes at the time a cable operator files
its rates with the franchising authority. Such notice should state
that the proposed rate change is subject to approval by the franchising
authority. If the cable operator is only permitted a smaller increase
than was provided for in the notice, the cable operator must provide
an explanation to subscribers on the bill in which the rate adjustment
is implemented. If the cable operator is not permitted to implement
any of the rate increase that was provided for in the notice, the
cable operator must provide an explanation to subscribers within 60
days of the date of the franchising authority's opinion. Said notice
shall provide the name and address of the franchising authority before
whom the rate application is pending.
D.
The cable operator(s) bears the burden of proof that its current
rate or any proposed rate increase complies with the statutes of the
United States and the regulations of the FCC.
E.
Within 10 days of receipt of a rate application, the franchising
authority shall provide notice in a newspaper of general circulation
within the jurisdiction of the franchising authority, which notice
shall contain at a minimum:
(1)
The rate application has been received from the cable operator(s).
(2)
The manner in which interested parties may review and/or obtain
copies of the rate application.
(3)
The effective date of the proposed rate increase if that is
the subject of the rate application.
(4)
The manner in which interested parties may offer their comments
regarding the rate application.
(5)
The date all comments must be received by the franchising authority.
(6)
The date on which the franchising authority must act on the
rate application or the rate application shall have become effective
without action.
F.
Within 30 days of receipt of the rate application, other than an
annual rate adjustment, the franchising authority shall:
(1)
Review the rate application and documentation submitted by the
cable operator(s).
(2)
Compare the current rates or the proposed rate increase submitted
by the cable operator(s) with the maximum permitted rates or with
such other applicable standards as have been adopted and/or approved
by the FCC.
(3)
Consider any public input on the rate application which may
have been provided.
(4)
Approve, disapprove or seek additional time to consider the
rate application.
G.
In the event the cable operator files an annual rate adjustment,
the franchising authority shall have 90 days from the date of the
filing to:
(1)
Review the rate application and documentation submitted by the
cable operator(s).
(2)
Compare the current rates or the proposed rate increase submitted
by the cable operator(s) with the maximum permitted rates or with
such other applicable standards as have been adopted and/or approved
by the FCC.
(3)
Consider any public input on the rate application which may
have been provided.
(4)
Approve, disapprove or seek additional time to consider the
rate application.
However, if the franchising authority or its designee concludes
that the cable operator has submitted a facially incomplete filing,
the franchising authority's deadline for issuing an opinion, the date
on which rates may go into effect if no opinion is issued and the
period for which refunds are payable will be tolled while the franchising
authority is waiting for this information; provided, that in order
to toll these effective dates the franchising authority or its designee
notifies the cable operator of the incomplete filing within 45 days
of the date the filing is made.
H.
Deemed Approval.
(1)
If the franchising authority shall fail to either approve, disapprove
or seek additional time to consider the rate application, other than
an annual rate adjustment, within said 30 days, the rate application
shall be deemed approved on the thirtieth day after submission.
(2)
Notwithstanding anything to the contrary contained in this Part
4B, in the event the cable operator files an annual rate adjustment,
if the franchising authority has taken no action within the ninety-day
review period, then the proposed rates may go into effect at the end
of the review period, subject to a prospective rate reduction and
refund if the franchising authority subsequently issues an opinion
disapproving any portion of such rates; provided, however, that in
order to order a prospective rate reduction and refund, if the cable
operator who made the filing inquires as to whether the franchising
authority intends to issue an opinion after the initial review period,
the franchising authority or its designees must notify the cable operator
of its intent in this regard within 15 days of the cable operator's
inquiry. If a proposed rate goes into effect before the franchising
authority issues its opinion, the franchising authority shall have
12 months from the date the cable operator filed for the rate adjustment
to issue its opinion. In the event that the franchising authority
does not act within this twelve-month period, it may not at a later
date order a refund or a prospective rate reduction with respect to
that rate filing.
2.
Request for Additional Time.
A.
Rate Application. If the franchising authority is unable to determine
from the rate application, including any supporting documentation
submitted by the cable operator(s), whether the current rates for
the basic service tier and/or for the equipment and installation necessary
to receive the basic service tier and/or the proposed rate increase
are within the maximum permitted rates, the franchising authority
may, in cases not involving an annual rate adjustment or cost-of-service
showings, take an additional 90 days to consider the rate application.
(1)
The franchising authority shall issue an order and serve the
same upon the cable operator(s) indicating that additional time is
required to consider the rate application. The order shall be issued
prior to the expiration of the 30 days during which the franchising
authority may consider the rate application. Within seven days of
issuance of such order, the franchising authority shall publish notice
in a newspaper of general circulation within the jurisdiction of the
franchising authority, which notice shall contain a summary of the
order, including the additional time requested and the reason for
requesting such additional time.
(2)
The cable operator may submit such additional information as
it believes will cure any deficiencies in the rate application during
the additional time.
(3)
The franchising authority may require the cable operator(s)
to furnish additional specified information, including proprietary
information, when the current rate or proposed rate increase is in
excess of the maximum permitted rate. When the current rate is equal
to or below the maximum permitted rate the franchising authority may
only require furnishing of documentation that the rate is within the
maximum permitted rate. Any proprietary information furnished to the
franchising authority shall be retained as confidential in conformity
with regulations adopted by the FCC in this regard, a copy of which
regulations are on file with and available for review upon request
to the franchising authority.
(4)
If no decision is issued by the franchising authority at the
expiration of the additional time, the current rates or proposed rate
increase shall become effective, subject to any later refund order
adopted by the franchising authority. Notwithstanding the foregoing,
the franchising authority, in order to later order a refund, must,
within the text of the order, direct the cable operator(s) to keep
an accurate account of all amounts received by reason of the rate
in issue and on whose behalf such amounts were paid.
B.
Cost of Service Rate Application. If the cable operator(s) has submitted
a cost-of-service rate application and the franchising authority is
unable to determine whether the current rates for the basic service
tier and/or for the equipment and installation necessary to receive
the basic service tier and/or the proposed rate increase are within
the maximum permitted rates, the franchising authority may take an
additional 150 days to consider the cost of service rate application.
(1)
The franchising authority shall issue an order and serve the
same upon the cable operator(s) indicating that additional time is
required to consider the rate application because it is a cost-of-service
rate application. The order shall be issued prior to the expiration
of the 30 days during which the franchising authority may consider
the rate application. Within seven days of issuance of such order
the franchising authority shall publish notice in a newspaper of general
circulation within the jurisdiction of the franchising authority,
which notice shall contain a summary of the order including the additional
time requested and the reason for requesting such additional time.
(2)
The franchising authority may require the cable operator(s)
to furnish additional specified information, including proprietary
information, when the current rate or proposed rate increase is in
excess of the maximum permitted rate. When the current rate is equal
to or below the maximum permitted rate, the franchising authority
may only require furnishing of documentation that the rate is within
the maximum permitted rate. Any proprietary information furnished
to the franchising authority shall be retained as confidential in
conformity with regulations adopted by the FCC in this regard, a copy
of which regulations are on file with and available for review upon
request to the franchising authority.
(3)
If no decision is issued by the franchising authority at the
expiration of the additional time, the current rates or proposed rate
increase shall become effective, subject to any later refund order
adopted by the franchising authority. Notwithstanding the foregoing,
the franchising authority, in order to later order a refund, must,
within the text of the order, direct the cable operator(s) to keep
an accurate account of all amounts received by reason of the rate
in issue and on whose behalf such amounts were paid.
3.
Decision of the Franchising Authority.
B.
The franchising authority may, but is not required to, issue a written
opinion when the rate application is approved and there have been
no objections filed.
C.
Within seven days of issuance of an opinion, the franchising authority
shall provide notice in a newspaper of general circulation within
the jurisdiction of the franchising authority, which notice shall
contain at a minimum that:
(1)
The franchising authority has reached a decision on the rate
application and announcing that decision.
(2)
The manner in which interested parties may review and/or obtain
copies of the opinion.
(3)
The right of interested parties to take an appeal from the opinion
of the franchising authority.
(4)
The deadline for taking any such appeal.
D.
Notice of the opinion of the franchising authority shall be provided
to the cable operator(s) by mail within seven days of issuance.
4.
Disapproval of the Rate Application.
A.
Rate Reduction.
(1)
Current Rates. If the franchising authority shall issue an opinion
disapproving the current rates of the cable operator(s) for the basic
service tier or for rates for the equipment and installation necessary
to receive the basic service tier, the franchising authority may order
a reduction in the current rates for the basic service tier and/or
for the equipment and installation necessary to receive the basic
service tier. The prospective rate adjustment may be set at:
(2)
Proposed Rates. If the franchising authority shall issue an
opinion disapproving of any proposed rate increase the franchising
authority may:
(a)
Prescribe a reasonable rate to be charged by the cable operator(s)
instead of the proposed rate. The prescribed rate may not be lower
that the maximum permitted rate unless a cost-of-service rate application
has been submitted by the cable operator(s) and the franchising authority
determines that the cost-of-service analysis justifies a lower rate.
(b)
Advise the cable operator(s) of a rate level to which it would
not object if a modified rate application were resubmitted.
B.
Refunds. The franchising authority may order a refund if:
(1)
The cable operator failed to comply with a rate decision by
the franchising authority. The refund period may be retroactive to
the effective date of the rate order issued by the franchising authority.
(2)
The franchising authority determines in its initial review of
the current rates that they exceed the maximum permitted rates and
are unsupported by a cost-of-service rate application. In such instance
the refund period may be retroactive to September 1, 1993, or one
year prior to the date on which the cable operator(s) implement(s)
the prospective rate adjustment, whichever is shorter.
(3)
The franchising authority:
(a)
Has issued an order permitting it to take an additional 90 or
150 days to consider a rate application.
(b)
Has directed the cable operator(s) to keep an accurate account
of all amounts received by reason of the rate in issue and on whose
behalf such amounts were paid; but
(c)
Failed to issue an opinion during that time period, causing
the rates to become provisionally effective and the franchising authority
later finds all or a portion of the rates to be unreasonable. In such
instance, the refund period may be retroactive to the date of the
order and ending on the date on which the cable operator(s) implements
the prospective rate reduction or one year, whichever is shorter.
C.
Before any refund order shall become effective, the franchising authority
must send notice to the cable operator(s) and provide said cable operator(s)
a maximum of 30 days to submit additional information to the franchising
authority as to why the refund should not be ordered. At the end of
said period the franchising authority shall either confirm, amend
or rescind said refund order.
D.
Refunds shall include interest computed at applicable rates published
by the Internal Revenue Service for tax refunds and additional tax
payments.
E.
If any proposed rate increase has gone into effect due to inaction
of the franchising authority or the failure of the franchising authority
to issue an order stating a need for additional time, the franchising
authority has no right to order a refund.
F.
Any violation of any order issued hereunder shall be considered a
violation of this Part.
[Ord. 98-O-10, 5/18/1999, § 5]
1.
Cumulative Remedies. Where this Part provides alternative penalties
or remedies they shall be cumulative and the imposition of one penalty
or remedy shall not prevent the franchising authority from invoking
any other penalty or remedy provided herein.
2.
In addition to all other rights and remedies provided herein, the
franchising authority shall have all rights and remedies afforded
under the franchise agreement.
3.
Unless otherwise provided, any person convicted of violating any
provisions of this Part, including any order issued or any rule or
regulation promulgated hereunder shall, upon conviction, be fined
not more than $600 and costs for each offense and in default of payment
thereof may be imprisoned for not more than 30 days. Each day of a
continuing violation shall constitute a separate and distinct offense.
[Ord. 98-O-10, 5/18/1999, § 6]
1.
Appeals of all ratemaking decisions by the franchising authority
may be taken to the FCC by the cable operator(s), subscribers or other
interested parties.
A.
Appeals must be filed within 30 days of the date of public release
of the franchising authority's opinion.
B.
Oppositions to an appeal must be filed within 15 days after the filing
of the appeal and must be served on the party appealing.
C.
Replies to oppositions shall be filed within seven days of the filing
of an opposition and served on all parties.
[Ord. 98-O-10, 5/18/1999, § 7]
1.
Cable Programming Service Rates.
A.
The franchising authority is hereby authorized to file complaints
with the FCC on behalf of itself and/or any subscriber(s) who files
a complaint with the franchising authority for those cable programming
service rates solely regulated by the FCC.
B.
The decision to file a complaint with the FCC by the franchising
authority shall be in the sole discretion of the franchising authority.
C.
Any such complaint filed by the franchising authority shall be in
conformity with the rules of the FCC.
D.
The franchising authority shall not file a complaint unless within
90 days after a rate increase in cable programming service rates becomes
effective it receives no less than two complaints from subscribers.
E.
No formal review or adjudication by the franchising authority of
any such complaint is permitted.
