[Ord. 553, 8/9/1976, § 1]
This Part shall be known and may be cited as the "Sammons Communications, Inc., Franchise Ordinance".
[Ord. 553, 8/9/1976, § 2]
For the purpose 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 words in the singular number, include the plural number. The word "shall" is always mandatory and not merely directory.
- ACCESS CHANNELS
- Those services of cable television systems in major television market communities as defined in Section 76-251 of 37 FR 13848 (1972) of the FCC Rules.
- The Borough of Emmaus in the State of Pennsylvania.
- CABLE TELEVISION SYSTEM OR SYSTEM
- A system of antennas, cables, wires, lines, towers, wave-guides, or other conductors, converters, equipment or facilities, designed and constructed for the purpose of producing, receiving, amplifying and distributing, audio, video and other forms of electronic or electrical signals, located in the Borough of Emmaus.
- The grantee of rights under this Part awarding a franchise.
- The Borough Council of Emmaus.
- FRANCHISE TERRITORY
- The entire area within the geographical area of the Borough of Emmaus.
- GROSS SUBSCRIBER REVENUES
- Only those revenues derived from the monthly service charges paid by subscribers located within the Borough for regular cable television reception service, which service includes only the transmission of broadcast signals and the programming presented on the required access and originations channels, if any. As required by the Federal Communications Commission, gross subscriber revenues shall not include any revenues received (a) as reimbursement of expense in the operation of any access channels; (b) as advertising payments; (c) from the leasing of cable channels; (d) from programs for which a per-channel or per-program charge is made and (e) from furnishing other communications and non-broadcast services either directly or as a carrier for another party or any other income derived from the system. Gross subscriber revenues shall also not include revenues received as installation charges and fees for reconnections, inspection, repairs or modifications of any installations.
- Any person, firm, partnership, association, corporation, company or organization of any kind.
[Ord. 553, 8/9/1976, § 3]
A public hearing concerning the renewal of the franchise herein granted to the Company to conform to the new FCC rules and regulations concerning cable television operations was held on July 12, 1976, at 7:00 p.m., at Emmaus Borough Hall Council Chambers. Public notice of said hearing was given in THE FREE PRESS on June 23 & 30, 1976, which notice invited interested parties to participate in said hearing and comment upon the legal, character, financial, technical and other qualifications of the Company to continue to operate a cable television system in the Borough. Said hearing having been held on the date and place stated hereinabove, and said hearing having been fully open to the public, and the Borough having received at said hearing all comments regarding the qualifications of the Company to receive this franchise renewal, the Borough hereby finds that the Company possesses the necessary legal, technical, character, financial and other qualifications and that the Company's construction arrangements are adequate and feasible, and that therefore the Borough hereby grants to the Company a non-exclusive franchise, right and privilege to construct, erect, operate, modify and maintain, in, upon, along, across, above and over and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the Borough, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Borough of a cable television system for the purpose of distributing television and radio signals, and other electronic impulses in order to furnish television and radio programs and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said streets, alleys, public ways and public places and all manner of easements for the purposes herein set forth.
[Ord. 553, 8/9/1976, § 4]
The franchise granted the Company herein shall terminate 15 years from date of grant, subject to renewal for periods of reasonable duration on the same terms and conditions as contained herein, or on such different or additional terms and conditions as may be lawfully specified by the Borough Council and as are consistent with the requirements of Rule 67.31 of the FCC. It is hereby mutually agreed that Company shall give to Borough Council written notice of its intention to renew said franchise at least one year prior to the termination of the instant term. The Company's application for franchise renewal shall be granted provided: (1) Company shows that its CATV service during the preceding franchise period has reflected a good-faith effort to serve the needs and interests of its service area; (2) Company has not demonstrated a callous disregard of the law and all pertinent regulations; and (3) Borough Council, after public hearing, determines that it is in the best interest of the Borough to continue with Company's franchise. In the event that Company determines not to renew their lease, the said Company shall be responsible for removing said system from the franchise territory, or in the alternative, the said Company shall sell such system to the Borough at a value mutually acceptable to the parties. If agreement as to value cannot be agreed upon, either party may petition the Court of Common Pleas of Lehigh County to have a Board of View appointed to assign such value.
[Ord. 553, 8/9/1976, § 5; as amended by Ord. 703, 11/21/1988]
The Company shall, during each year of operation under this franchise pay to the Borough, 5% of the annual gross subscriber revenues received by the Company for regular franchise territory. At the time of this annual payment, the Company shall furnish the Borough with an operating report showing the Company's annual gross subscriber revenues during the preceding year and such other information as the Borough shall reasonably require with respect to properties and expenses related to the Company's services within the franchise territory for such period.
The Borough reserves the right to collect such other fees as are deemed collectible by the FCC.
[Ord. 553, 8/9/1976, § 6]
The Company shall keep full, true, accurate and current books of account, which books and records shall be made available for inspection and copying by such Borough Official as Borough Council shall designate.
[Ord. 553, 8/9/1976, § 7; as amended by Ord. 615, 5/5/1980, § 1]
Attached hereto and made a part of this franchise as Exhibit A is a description of the Company's installation practices and a complete schedule of rates. In addition to the monthly service specified in Exhibit A, the Company may add to that rate taxes or fees imposed upon the Company's gross subscriber revenue by Borough, State or Federal governmental or legislative bodies and fees or charges imposed upon the Company for the use and distribution of copyrighted program material.
No increases in rates charged subscribed in excess of those listed herein shall be made except as authorized by the Borough after public notice of such increase is given and interested parties have been afforded an opportunity to comment thereon, provided, however, the Company shall have the right to increase its rates up to 5% per annum on a cumulative basis without Borough approval. In no event, however, shall Company raise its rate more than 15% at any one time without prior consent from the Borough.
(NOTE: Ord. 615 also amended portions of Exhibit A, which has not been codified, but is adopted by reference herein.)
[Ord. 553, 8/9/1976, § 8]
During the term of this franchise, and any renewal thereof, the Company shall maintain within the Borough a local business office or agent for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, and similar matters. The provisions of this section shall be complied with if Company maintains a local business headquarters office within seven airline miles of the principal coordinates of the Borough, which office may be reached by a local, toll-free telephone call, and provides the Borough Manager's office with the name, address and phone number of a person who will act as the Company's agent to receive complaints regarding quality of service, equipment malfunctions and similar matters. The local office shall be open to receive inquiries or complaints from subscribers during normal business hours, and in no event less than 9:00 to 5:00 Monday through Friday. Any complaints from subscribers shall be investigated and acted upon as soon as possible, but at least within three business days of their receipt. The Company shall keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said complaint and the time and date thereof. This log shall be made available for periodic inspection by such Borough Official as Borough Council shall designate.
The Company shall by appropriate means, such as a card or brochure, as subscribers are connected or reconnected to the system furnish information concerning the procedures for making inquiries and/or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed. The Borough appoints its Manager as responsible for implementation of the complaint procedures and continuing administration of the franchise.
[Ord. 553, 8/9/1976, § 9]
The Company shall pay, and by its acceptance of this franchise the Company expressly agrees that it will pay, all damages and penalties which the Borough may legally be required to pay as a result of the Company's negligence in the installation, operation, or maintenance of the cable television system authorized herein. The Borough shall notify the Company's representative within 15 days after the presentation of any claim or demand to the Borough, either by suit or otherwise, made against the Borough on account of any negligence or contract as aforesaid on the part of the Company. The Company further agrees as follows:
Company shall carry Workmen's Compensation insurance, with statutory limits, and Employers' Liability insurance with limits of not less than $100,000, which shall cover all operations to be performed by Company as a result of this Part.
Company shall carry Comprehensive General Liability and Comprehensive Automobile Liability Insurance with bodily injury limits of not less than $300,000 per occurrence, and property damage limits of not less than $300,000.
Company's Workmen's Compensation, Comprehensive General Liability and Comprehensive Automobile Liability insurance shall be written by an insurance company with a capital and/or surplus of not less than $3,000,000, and Company agrees to furnish Borough with certified copies or certificates of insurance of said policies, which shall provide that insurance shall not be cancelled unless 10 days prior written notice shall first be given to Borough.
[Ord. 553, 8/9/1976, § 10]
Upon grant of this franchise to construct and maintain a community television system in the Borough, the Company may enter into contracts with Water, Sewer or Highway Departments of the Borough, any public utility companies or any other owner or lessee of any poles located within or without the franchise territory to whatever extent such contract or contracts may be expedient and of advantage to the Company for use of poles and posts necessary for proper installation of the system, obtain right-of-way permits from appropriate Borough State, County and Federal officials necessary to cross highways or roads under their respective jurisdictions to supply main trunk lines from the Company's receiving antennas, obtain permission from the Federal Aviation Authority to erect and maintain antennas suitable to the needs of the system and its subscribers and obtain whatever other permits a Borough, County, State or Federal Agency may require. In the construction, installation and maintenance of its system, the Company will use steel, cable and electronic devices, all of specialized and advanced design and type; in the operation of its system, the Company will employ personnel with training, skill and experience in electronics and communications. Neither material nor personnel of this sort may be available to the Company for its system in the event of a war or other similar national emergency, in which event Company shall confer with Borough as to substitute materials to be used.
The Company's system, poles, wires and appurtenances shall be located, erected and maintained so that none of its facilities shall endanger or interfere with the lives of persons, or interfere with any improvements the Borough may deem proper to make, or unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, easements or public property.
The Company's system presently serves that portion of the Borough as demonstrated on map annexed hereto and made a part hereof as Exhibit B. In the event that the Borough shall annex further territory as authorized by law, the Company shall extend energized trunk cable to the remaining portions of the Borough so annexed within one year thereafter, unless additional time is granted by the Borough Council upon request of the Company for good cause shown. Extension of service shall not be required into an area which does not meet the requirements set forth in § 13-311 of this Part.
All transmission and distribution structures, lines and equipment erected by the Company within the Borough shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places.
In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Company shall, at its own cost and expense and in a manner approved by the Borough, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced.
In event that at any time during the period of this franchise the Borough shall lawfully elect to alter or change the grade of any street, alley or other public way, the Company upon reasonable notice by the Borough shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
The Company shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant or main, and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line, and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such manner as not to interfere with the usual travel on said streets, alleys and public ways.
The Company shall, on the request of any person holding a building moving permit, issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the Company shall have the authority to require such payment in advance. The Company shall be given not less than 48 hours advance notice to arrange for such temporary wire changes.
The Company shall have the authority to trim trees upon and over-hanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company, all trimming to be done under the supervision and direction of the Borough and at the expense of the Company.
The Company shall provide, upon request and without charge, service to any municipal buildings owned and operated by the Borough and to any public or parochial elementary or secondary school. This shall mean only an energized cable to such building. The cost of any internal wiring shall be borne by the institution.
[Ord. 553, 8/9/1976, § 11]
It shall be the obligation of Company to serve all residents of the franchises territory except to the extent that density of homes, adverse terrain or other factors render providing service impracticable, technically infeasible or economically noncompensatory. For purposes of determining compliance with the provisions of this section, and to provide for a reasonable and non-discriminatory policy governing extensions of cable service within the franchise territory, which policy was subject to public review in the public proceeding leading to the award of this franchise, Company shall extend service to new subscribers at the formal installation charge and monthly rate for customers of that classification, under the following terms and conditions:
Where the new subscriber, or nearest subscriber of a group of new subscribers is located within 500 feet of existing truck cable; and
Where the number of homes to be passed by such new extension cable plant bears the same proportional ratio to the total amount of new cable plant as the average number of homes passed per mile of existing cable plant.
[Ord. 553, 8/9/1976, § 12]
All facilities and equipment of Company shall be constructed and maintained in accordance with the requirements and specifications of the National Electrical Safety Code and such applicable ordinances and regulations set forth by the Borough and/or any other local, state or Federal agencies.
[Ord. 553, 8/9/1976, § 13]
The Company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise, and to assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of Federal or state laws.
[Ord. 553, 8/9/1976, § 14]
No renewal of this franchise nor increases in rates and charges shall be effective except pursuant to a public hearing affording due process. The Company shall be a party to any such hearing and any other hearings in which its rights, privileges or interests would be affected and shall be fully entitled to such due process rights as may be available under applicable laws, ordinances, rules or regulations.
[Ord. 553, 8/9/1976, § 15]
The Company shall not sell or transfer its system to another, nor transfer any rights under this franchise to another without written approval given after public hearing by the Borough, provided, that such approval shall not be unreasonably withheld if the vendee, assignee or lessee has filed with the appropriate official of the Borough an instrument duly executed, reciting the intention of such sale, assignment or lease, accepting the terms of this franchise and agreeing to perform all conditions thereof.
[Ord. 553, 8/9/1976, § 16]
The Company shall, at all times, comply with the rules and regulations governing CATV operations promulgated by the FCC, specifically those set out in Section 76.31 of the FCC Rules and Regulations. This shall include adherence by the Company to FCC rules regarding technical and engineering specifications involved in the construction of the CATV System and signal carriage therein.
[Ord. 553, 8/9/1976, § 17]
Consistent with the requirement of Rule 76.31 (a)(6) of the FCC, any modification of Rule 76.31 resulting from amendment thereto by the FCC shall to the extent applicable be considered as a part of this franchise as of the effective date of the amendment made by the FCC and shall be incorporated in this franchise by specific amendments thereto by the lawful action of the Borough Council within one year from the effective date of the FCC's amendment or at the time of renewal of this franchise, whichever occurs first.
[Ord. 553, 8/9/1976, § 18]
The Company shall assume the costs of the publication of this Part and franchise renewal as such publication is required by law. A bill for publication costs shall be presented to the Company by the appropriate Borough officials upon the Company's filing of its acceptance of this franchise and the said publication costs shall be paid at that time by the Company.
[Ord. 553, 8/9/1976, § 19]
The Company shall assume the payment of legal and consulting fees occasioned by the preparation of this Part and franchise agreement. A bill for such costs shall be presented to the Company by the appropriate Borough official upon the Company's filing of its acceptance of this franchise and the said costs shall be paid at that time by the Company.
[Ord. 553, 8/9/1976, § 20]
The Company shall not allow its cable or other operations to interfere with television reception of persons not served by the Company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the Borough.
The Company shall not, as to rates, charges, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled.
[Ord. 553, 8/9/1976, § 21]
No person, whether or not a subscriber to the cable system shall willfully, maliciously or otherwise damage or cause to be damaged any wire, cable, conduit, apparatus, appurtenance, or equipment of a franchisee operating a cable television system within the Borough, or commit any act with intent to cause such damage, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, apparatus, appurtenance or equipment of such franchisee with the intent to obtain a signal or impulse from the cable system without authorization from or compensation to such franchisee, or to obtain cable television or other communications service with intent to cheat or defraud said franchisee of any lawful charge to which it is entitled.
Whoever shall violate any provision of this section shall be guilty of the appropriate offenses enumerated under the Crimes Code of Pennsylvania and shall be liable for punishment thereunder.
[Ord. 553, 8/9/1976, § 22]
In the event Company shall fail to perform its obligations or shall be in default under this franchise and shall fail to correct such failure to perform with 60 days after written notice thereof by the Borough, the franchise may be revoked by the Borough, provided, however, that the Company shall not be responsible for any failure to perform due to Federal, State, or Municipal action, statute, ordinance or regulation, strike or other labor trouble; act of God, riot or other civil disturbance; inability to secure materials or supplies, or, without limiting the foregoing, by any other cause, contingency or circumstance beyond the control of the Company which hinders or prevents its performance under the franchise. The Borough Council may extend the period within which the Company shall correct any failure to perform upon application of the Company for good cause. No revocation of the franchise shall occur except upon written notice thereof to the Company by the Borough Council and upon public notice and a public proceeding affording due process.