[Ord. 2008-03, 11/19/2008, § 1]
This Part shall be known and may be cited as the "Franklin Township
Cable System and Service Ordinance."
[Ord. 2008-03, 11/19/2008, § 2]
This Part regulates cable service pursuant to the Township's
power to regulate protect and manage the rights-of-way, require minimum
standards of construction and maintenance of a cable system erected
upon, under, over, along, across, or in the Township's streets, roads
and/or rights-of-way, exercise the Township's general police powers,
enforce the Second Class Township Code, 53 P.S. § 65101
et seq., and exercise authority pursuant to federal and state law.
[Ord. 2008-03, 11/19/2008, § 3]
It is the intent of the Township that this Part conform to federal
and state law. If a court of competent jurisdiction holds, by its
final order, any provision of this Part to be in conflict with federal
and state law, federal and state law will control and this Part, only
to the extent that any provision is so held to be in conflict with
federal and state law, shall not apply.
[Ord. 2008-03, 11/19/2008, § 4]
This Part shall be construed broadly to promote the maintenance
of peace, good government and public health, safety and general welfare.
[Ord. 2008-03, 11/19/2008, § 5]
All understandings, communications, agreements, ordinances or
parts of such understandings, communications, agreements, ordinances
- whether oral or in writing - in conflict with the provisions of
this Part are hereby repealed upon the effective date of this Part.
[Ord. 2008-03, 11/19/2008, § 6]
For purposes of this Part, the following terms shall have the
meanings indicated, unless otherwise expressly stated or the context
clearly indicates otherwise. When not inconsistent with the text,
words used in the present tense include the future tense, words in
the plural include the singular, and words in the masculine include
the feminine. Unless otherwise expressly stated, words not defined
in this section shall be given the meaning set forth in Title 47 of
United States Code, 47 U.S.C. § 521 et seq., as amended,
and, if not defined therein, their common and ordinary meaning.
Any channel, bandwidth, or other type of space, access or
capacity on a cable system designed for noncommercial public, educational
and/or governmental use.
A facility consisting of a set of transmission paths and
associated signal generation, reception and control equipment that
is designed to provide cable and other telecommunication service to
subscribers within the Township, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television signals of one or more television broadcast
stations.
A facility that serves only subscribers in one or more multiple-unit
dwellings under common ownership, control or management, unless such
facility or facilities use any public right-of-way, including streets
or easements.
A facility of a common carrier or utility, only to the extent
that regulation of such common carrier or utility is prohibited by
federal or state law.
An open video system ("OVS") that complies with § 653
of the Cable Act.
Any facilities of any electric utility used solely for operating
its electric utility systems.
Any channel, bandwidth, or other type of space, access or
capacity on a cable system designated for noncommercial educational
use by any public school system serving the Township.
The nonexclusive rights granted in accordance with this Part
to construct, operate and maintain a cable system along the public
rights-of-way within all or a specified area of the Township. No such
franchise authorization shall mean nor include any license or permit
required for the privilege of transacting and carrying on a business
within the Township as required by the ordinances and laws of the
Township or for excavating or performing other major work in or along
public rights-of-way that goes beyond providing cable service drops
for individual subscribers, servicing of pedestals or other facilities,
or other routine repair and maintenance.
A cable service operator granted a nonexclusive franchise
by the Township under the terms and conditions of this Part in accordance
with state and federal law.
Any channel, bandwidth, or other type of space, access or
capacity on a cable system designated for noncommercial local government
use.
Any and all cash, credits, property or other consideration
of any kind or nature, received during a defined twelve-month period,
directly or indirectly, by the franchisee, its affiliates or any person
in which the franchisee has a financial interest or by any other entity
that is an operator of the system arising from, in connection with,
attributable to or in any way derived from the provision by the franchisee
of cable service in the Township, including the studios and other
facilities associated therewith. Gross annual revenues include, but
are not limited to, monthly fees charged subscribers for any cable
service including, but not limited to, basic, programming, optional,
premium, per-channel or per-program service or tier of service; installation,
disconnection, reconnection and change-in-service fees, leased channel
fees, late fees and administrative fees; revenues from converter rental
or sales, studio rental, production equipment and personnel fees;
advertising revenues; barter; and revenues from home shopping channels.
This provision is to be construed in its broadest sense, to include
all present and future sources of revenue derived from the provision
of cable service unless specifically excluded. Gross annual revenues
shall be the basis for computing the franchise fee, user or equivalent
fee under this Part. Gross annual revenues shall not include any sales,
service, occupation or other excise tax to the extent that such taxes
are charged separately from normal service charges and are remitted
by the franchisee directly to the taxing authority. Subscriber-based
revenue shall be calculated by determining revenue derived from subscribers
within the Township. Non-subscriber-based revenue shall be calculated
on a pro rata basis (revenue/subscribers times the number of subscribers
within the Township).
Any channel, bandwidth, or other type of space, access or
capacity on a cable system designated for noncommercial use by the
Township, Township residents or resident-organized noncommercial organizations
within the Township and which is available for such use on a nondiscriminatory
basis.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway,
easement or similar property in which the Township now or hereafter
holds any property interest which, consistent with the purposes for
which it was dedicated, may be used for the purpose of installing
and maintaining a cable system. No reference herein to a public right-of-way
shall be deemed to be a representation or guaranty by the Township
that its interest or other right to control the use of such property
is sufficient to permit its use for such purposes and a franchisee
shall be deemed to gain only those rights to use as are properly in
the Township and as the Township may have the undisputed right and
power to give.
The surface of and the space above or below any public street,
public roadway, public highway, public freeway, public lane, public
way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or public right-of-way
now or hereafter held by the Township or in which the Township otherwise
holds an interest, which shall entitle the franchisee to the use thereof
for the purposes of installing over poles which wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and appurtenant
to the operation of the system.
A person or other entity which contracts with franchisee
for, and lawfully receives, cable service distributed by the cable
system.
The Township of Franklin, Chester County, Commonwealth of
Pennsylvania or the lawful successor, transferee, designee, or assignee
thereof.
[Ord. 2008-03, 11/19/2008, § 7]
1.
A written application shall be filed with the Township for grant
of an initial franchise, renewal of a franchise or modification of
a franchise pursuant to this Part. The Township may require the applicant
to demonstrate in its application compliance with all requirements
of this Part and all applicable laws.
2.
All applications accepted for filing shall be made available by the
Township for public inspection.
[Ord. 2008-03, 11/19/2008, § 8]
1.
A person may apply for an initial franchise by submitting a request
for issuance of a request for proposal (RFP) and requesting an evaluation
of the resulting proposal pursuant to this section. Upon receipt of
a request for an RFP, and should the Township determine that the cable-related
needs and interests of the community exist, the Township shall promptly
issue an RFP and proposed franchise terms, which shall be mailed to
the person requesting its issuance and made available to any other
interested party. The applicant shall respond within the time directed
by the Township, providing the information and material set forth
in this section. The procedures, instructions and requirements set
forth in the RFP shall be followed by each applicant as if set forth
and required herein. The Board of Supervisors or its designee shall
be authorized to seek additional information from any applicant and
to establish deadlines for the submission of information.
2.
Notwithstanding the provisions of this section, a person may apply
for an initial franchise by submitting an unsolicited proposal, providing
the information and material set forth in this section and requesting
an evaluation of that proposal pursuant to this section.
3.
A proposal for the grant of an initial franchise, whether unsolicited
or in response to an RFP, shall require, at minimum, the following
information:
A.
Name and address of the applicant and identification of the ownership
and control of the applicant, including the names and addresses of
the 10 persons holding the largest interests in the applicant and
affiliates of the applicant and all persons with 5% or more ownership
interest in the applicant and its affiliates; the persons who control
the applicant and its affiliates; all officers and directors of the
applicant and its affiliates; the extent of the ownership interest
of each of the aforementioned persons and any other business affiliation
and cable system ownership interest of each named person.
B.
A demonstration of the applicant's technical ability to construct
and/or operate the proposed cable system, including identification
of key personnel.
C.
A demonstration of the applicant's legal qualifications to construct
and/or operate the proposed cable system including, but not limited
to, a demonstration that the applicant meets the following criteria:
(1)
The applicant must not have submitted an application for an
initial or renewal franchise to the Township, which was denied on
the grounds that the applicant failed to propose a system meeting
the needs and interests of the community or as to which any challenges
to such franchising decision were finally resolved adversely to the
applicant within three years preceding the submission of the application.
(2)
The applicant must not have had any franchise validly revoked
by any franchising authority within three years preceding the submission
of the application.
(3)
The applicant must have the necessary authority under Pennsylvania
law to operate a cable system.
(4)
The applicant must have or show that it is qualified to obtain
the necessary federal licenses or waivers required to operate the
system proposed. A franchise will not be issued to an applicant that
may not hold the franchise as a matter of federal or state law.
(5)
The applicant shall not be issued a franchise if, at any time
during the 10 years preceding the submission of the application, the
applicant was convicted of any act or omission of such character that
the applicant cannot be relied upon to deal truthfully with the Township
and the subscribers of the cable and other telecommunication system
or to substantially comply with its lawful obligations under applicable
law, including obligations under consumer protection laws and laws
prohibiting anticompetitive acts, fraud, racketeering or other similar
conduct.
(6)
An applicant shall not be issued a franchise if it files materially
misleading information in response to an RFP issued by the Township
or intentionally withholds information that the applicant lawfully
is required to provide. An applicant shall not be issued a franchise
if an elected official of the Township holds a controlling interest
in the applicant or an affiliate of the applicant. Notwithstanding
the foregoing, the Township shall provide an opportunity to an applicant
to show that it would be inappropriate to deny it a franchise due
to such controlling interest, by virtue of the particular circumstances
surrounding the matter and the steps taken by the applicant to cure
all harms flowing therefrom, the lack of involvement of the applicant's
principals or the remoteness of the matter from the operation of cable
systems.
D.
A statement prepared by a duly authorized financial officer regarding
the applicant's financial ability to complete the construction and
operation of the cable and other telecommunication system proposed.
E.
A description of the applicant's prior experience in cable system
ownership, construction and operation and identification of communities
in which the applicant or any of its principals have or have had a
franchise or license or any interest therein.
F.
Identification of the area of the Township to be served by the proposed
cable system, including a description of the proposed franchise area's
boundaries.
G.
A detailed description of the physical facilities proposed.
H.
Where applicable, a description of the construction of the proposed
system, including an estimate of plant mileage and its location, the
proposed construction schedule and a description, where appropriate,
of how services will be converted from existing facilities to new
facilities and information on the availability of space in conduits,
including, where appropriate, an estimate of the cost of any necessary
rearrangement of existing facilities.
I.
The proposed rate structure, including projected charges for each
basic, programming, optional, premium, per-channel or per-program
service or tier of service, installation, converters and other equipment
or services.
J.
A demonstration of how the applicant's proposal will reasonably meet
the future cable-related needs and interests of the community, including
descriptions of how the proposal will meet the needs described in
any recent community needs assessment conducted by or for the Township
and how the proposal will provide adequate public, educational and
governmental access channel capacity, facilities, financial support
and program production capability to meet the community's needs and
interests.
K.
Pro forma financial projections for the proposed franchise term,
including a statement of projected income and a schedule of planned
capital additions, with all significant assumptions explained in notes
or supporting schedules.
L.
If an applicant proposes to provide cable service to an area already
served by an existing franchise, the identification of the area where
the overbuild would occur, the potential subscriber density in the
area that would encompass the overbuild and the ability of the streets
to accommodate an additional system.
M.
Any other information as may be reasonably necessary to demonstrate
compliance with the requirements of this Part.
N.
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments and certifying
that the proposal meets all federal or state law requirements, as
well as requirements under this Part.
4.
In evaluating an application for a franchise, the Township shall
consider, among other things, the following factors:
A.
The extent to which the applicant has substantially complied with
the applicable law and the material teens of any existing franchise
granted by the Township.
B.
Whether the quality of the applicant's service under any existing
franchise in the Township, including signal quality, response to customer
complaints and billing practices, has been reasonable in light of
community needs and interests.
C.
Whether the applicant has the financial, technical and legal qualifications
to provide cable service.
D.
Whether the applicant's proposal is reasonable to meet the future
cable-related needs and interests of the community, taking into account
the cost of meeting such needs and interests.
E.
Whether, to the extent not considered as part of this section, the
applicant will provide adequate public, educational and governmental
access channel capacity, facilities or financial support.
F.
Whether issuance of a franchise is warranted in the public interest
considering the immediate and future effect on the public right-of-way
and private property which would be used by the cable system, including
the extent to which installation or maintenance as planned would require
replacement of property or involve disruption of property, public
services or use of the public rights-of-way; the effect of granting
a franchise on the ability of the Township to meet the cable-related
needs and interests of the community; and, to the extent permissible
pursuant to the provisions of federal or state law, the comparative
superiority or inferiority of competing proposals.
G.
Whether the applicant or an affiliate of the applicant owns or controls
any other cable system in the Township or whether grant of the application
may eliminate or reduce competition in the delivery of cable and other
telecommunication service in the Township.
5.
If the Township finds that it is in the public interest to issue
a franchise considering the factors set forth above, it shall issue
a franchise, effective upon written acceptance of the applicant. If
the Township denies a franchise, it will issue a written decision
explaining why the franchise was denied. Prior to deciding whether
to issue or not to issue a franchise, the Township may hold one or
more public hearings or implement other procedures under which comments
from the public on an applicant's proposal may be received. The Township
also may grant or deny a request for a franchise based on its review
of an application without further proceedings. The Township may reject
any application which is incomplete or fails to respond to an RFP.
This Part is not intended and shall not be interpreted to grant any
applicant or existing franchisee standing to challenge the issuance
of a franchise to another.
6.
If the Township grants, renews or modifies a franchise effective
upon the written acceptance of the applicant, the applicant shall
submit such acceptance within 30 calendar days from the date of the
Township resolution or ordinance granting, renewing or modifying the
franchise. This period may be extended for good cause. If such acceptance
is not submitted within 30 calendar days from the date of the Township
resolution or ordinance granting, renewing or modifying the franchise
or if the period is not extended by the Township, the franchise grant,
renewal or modification will be null and void without action by the
Township.
[Ord. 2008-03, 11/19/2008, § 9]
1.
Renewal shall be conducted in a manner consistent with § 626
of the Cable Act, 47 U.S.C. § 546. To the extent § 626
of the Cable Act is no longer applicable to renewals and no legislation
has been enacted to replace § 626 or to prescribe renewal
procedures, the Township and the franchisee shall conduct the renewal
process pursuant to the terms and provisions of § 626 of
the Cable Act as it existed on the effective date of this Part. The
following additional requirements shall apply to all applicants seeking
renewal after the effective date of this Part where the procedures
set forth in 47 U.S.C. § 546(a) through (c) are activated.
A.
Upon completion of the review and evaluation process set forth in
§ 626(a)(1) and (2) of the Cable Act, 47 U.S.C. § 546(a)(1)
and (2), should that process be invoked, an operator seeking renewal
of the franchise may, on its own initiative or at the request of a
franchising authority, submit a proposal for renewal.
B.
Upon receipt of the proposal for renewal, the Township shall publish
notice of its receipt and make copies available for review by the
public.
C.
D.
If a preliminary assessment is made that a franchise should not be
renewed, at the request of the franchisee, the Township will commence
a proceeding in accordance with § 626(c) of the Cable Act,
47 U.S.C. § 546(c), to address the issues set forth in § 626(c)(1)(A)
through (D) of the Cable Act, 47 U.S.C. § 546(c)(1)(A) through
(D).
E.
Notwithstanding any other provisions of Subsection 1A through D of this section, an operator may submit a proposal for the renewal of a franchise pursuant to this section at any time and a franchising authority may, after affording the public adequate notice and opportunity for comments, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of Subsection 1A through D of this section shall not apply to a decision to grant or deny a proposal under this section. The denial of a renewal pursuant to this section shall not affect action on a renewal proposal that is submitted in accordance with Subsection 1A through D.
F.
Notwithstanding any other provisions of this section, any lawful
action to revoke an operator's franchise for cause shall not be negated
by the subsequent initiation of renewal proceedings by an operator.
[Ord. 2008-03, 11/19/2008, § 10]
1.
An application for modification of a franchise agreement shall include,
at minimum, the following information:
A.
The specific modification requested.
B.
The justification for the requested modification, including the impact
of the requested modification on subscribers and the Township and
the financial impact on the applicant if the modification is approved
or disapproved, demonstrated through, inter alia, submission of financial
pro formas.
C.
A statement whether the modification is sought pursuant to § 625
of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration
that the requested modification meets the standards set forth in 47
U.S.C. § 545.
D.
Any other information that the applicant believes is necessary for
the Township to make an informed determination on the application
for modification.
E.
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application
and certifying that the application meets all federal or state law
requirements, as well as requirements under this Part.
[Ord. 2008-03, 11/19/2008, § 11]
1.
The franchisee acknowledges and agrees that the Franchising Authority
reserves the right to grant one or more additional franchises to provide
cable service within the franchise area; provided, however, that no
such franchise or franchise agreement shall contain terms or conditions
more favorable or less burdensome to the competitive entity than the
material terms and conditions herein, including, but not limited to:
franchise fees; insurance; system build-out requirements; performance
bonds or similar instruments; public, education and government access
channels and support; customer service standards; required reports
and related recordkeeping; and notice and opportunity to cure breaches.
If any such additional or competitive franchise is granted by the
franchising authority which, in the reasonable opinion of the incumbent
franchisee, contains more favorable or less burdensome terms or conditions
than the prior franchise agreement, the franchising authority agrees
that it shall amend the prior franchise agreement to include any more
favorable or less burdensome terms or conditions.
2.
In the event an application for a new cable franchise is filed with
the franchising authority proposing to serve the franchising area,
in whole or in part, the franchising authority shall serve or require
to be served a copy of such application upon any existing franchisee
or incumbent cable operator by registered or certified mail or via
nationally recognized overnight courier service.
[Ord. 2008-03, 11/19/2008, § 12]
An applicant shall be notified of any public hearing held in
connection with the evaluation of its proposal and shall be given
an opportunity to be heard.
[Ord. 2008-03, 11/19/2008, § 13]
The Township may grant one or more franchises, and each such
franchise shall be awarded in accordance with and subject to the provisions
of this Part. The Township may amend this Part to comply with a change
in applicable federal statute or regulation provided such amendment
is approved by the Township and franchisee.
[Ord. 2008-03, 11/19/2008, § 14]
1.
No person may construct or operate a cable system over, on or under
public streets or public rights-of-way in the Township without a franchise
granted by the Township unless otherwise authorized by law.
2.
Any person who occupies Township streets or public rights-of-way
for the purpose of operating or constructing a cable system and who
does not hold a valid franchise from the Township shall be subject
to all provisions of this Part including, but not limited to, its
provisions regarding construction and technical standards and franchise
fees. In its discretion, the Township at any time may require such
person to apply for a franchise within 30 days of receipt of a written
notice by the Township that a franchise is required and/or require
such person to remove its property and restore the area to a satisfactory
condition and charge the person the costs therefor. In no event shall
a franchise be created unless it is issued by action of the Township
and subject to the provisions of this Part.
[Ord. 2008-03, 11/19/2008, § 15]
The Township finds that the streets and public rights-of-way
of the county, state, and Township to be used by a franchisee for
the operation of a cable system are valuable public property acquired
and maintained by the county, state, and Township at great expense
to the taxpayers. The Township further finds that the grant of a franchise
or other allowance to a user to use streets and public rights-of-way
is a valuable property right without which a franchisee would be required
to invest substantial capital. The Township further finds that as
a result of any grant to a franchisee and regulation of same, it will
incur substantial costs.
[Ord. 2008-03, 11/19/2008, § 16]
1.
For each franchise granted to a franchisee, the Township shall be paid a franchise fee or its equivalent in an amount of 5% of gross annual revenues, or, if greater, the maximum amount permitted by federal or state law. In the event that federal or state law is or becomes silent regarding maximum gross annual revenues permitted, the 5% gross annual revenues shall be the franchise fee or its equivalent paid to the Township. In the event that federal law permits, and the Township desires, to increase the franchise fee beyond 5% of gross annual revenues as defined in § 13-106 of this Part, the Township shall notify franchisee in writing, and the requested increase in franchise fees shall take place effective 60 days following franchisee's receipt of such notification.
2.
The franchise fee or its equivalent is in addition to any taxes or
other payments that the franchisee may be required to pay under any
federal or state law, or local law and to any other tax, fee, or assessment
imposed upon franchisee or user by utilities or other operators for
use of their services, facilities or equipment.
3.
Payment of the franchise fee or its equivalent shall not be considered
in the nature of a tax of general applicability.
4.
No acceptance of any payment by the Township shall be construed as
a release or an accord and satisfaction of any claim the Township
may have for further or additional sums payable as a franchise fee
or its equivalent for the performance of any other obligation under
this Part, pursuant to a grant of franchise, or pursuant to a grant
of rights to a user.
5.
In the event any franchise fee or equivalent payment or recomputation
amount is not made on or before the date specified, franchisee or
user shall pay additional compensation and interest charges computed
from such due date, at an annual rate equal to 6% of the amount of
the franchise fee payment due to the Township. The interest rate shall
be applied as described from the date such payment was originally
due.
6.
The franchise fee or its equivalent and any other costs assessed
by the Township against a franchisee or user shall be paid quarterly
to the Township. Township shall be furnished at the time of each payment
with a franchise fee statement. Quarterly payments shall be made to
the Township no later than 45 days following the end of each calendar
quarter. Quarterly computation dates are the last days of the months
of March, June, September and December. The Township shall require
that an annual statement of gross revenues be furnished to the Township
upon written request.
7.
Following 30 days' written notice to franchisee of its intention
to do the same, the Township shall have the right to inspect and copy
the franchisee's records as is necessary to verify the accuracy of
franchise fee or equivalent payments, and the rights to audit and
to recompute any amounts determined to be payable under this Part
for a period of two years from the date of payment. Audits shall be
at the expense of the Township unless the audit disclosed an underpayment
of greater than 5% of the entire amount determined to be payable for
the period being audited, in which case the costs of the audit shall
be borne by the franchisee. Any additional amounts due to the Township
as a result of the audit shall be paid within 30 days following written
notice to the franchisee by the Township of the underpayment, which
notice shall include a copy of the audit report.
8.
In accordance with the above, franchisee shall maintain subscriber
revenue records for customers within the franchise or use area on
a separate basis, and shall provide such records to the Township without
providing the identity of the customers. Franchisee shall also provide,
upon request, such additional documentation to enable the Township
to determine the accuracy of franchisee or equivalent fee calculations.
Except as public disclosure of the above information is required in
the exercise of the Township's regulatory authority, the Township
shall use reasonable efforts to maintain the confidentiality of franchisee's
proprietary information.
[Ord. 2008-03, 11/19/2008, § 17]
1.
In any franchise granted, the following requirements shall apply
to a subsequent transfer of franchise, subject to the terms of § 617
of the Cable Act and the regulations promulgated thereunder (see 47
CFR 76.502):
A.
Township Approval Required. No transfer of 50% or more of equitable
ownership in a cable system or franchise shall occur without prior
approval of the Township.
B.
Application. An application for a transfer shall provide complete
information on the proposed transaction, including details on the
legal, financial, technical qualifications of the transferee.
C.
Determination by Township. In making a determination as to whether
to grant, deny, or grant subject to conditions an application for
a transfer of a franchise, the Township shall consider the legal,
financial, and technical qualifications of the transferee to operate
the system.
D.
Transferee's Agreement. No application for a transfer of a franchise
shall be granted unless the transferee agrees in writing that it will
abide by and accept all terms of the pertinent franchise agreement
and this Part and that it will assume the obligations and liabilities
known and unknown of the transferring franchisee.
E.
Approval Does Not Constitute Waiver. Subject to applicable statutes
of limitations, approval by the Township of a transfer of a franchise
does not constitute a waiver or release of any of the rights of the
Township under the pertinent franchise agreement and this Part, pertaining
to the operation of a cable system before the date of the transfer.
[Ord. 2008-03, 11/19/2008, § 18]
1.
In any franchise granted, the following requirements shall apply:
A.
Basis for Revocation. A franchise may be revoked by the Township for a franchisee's failure to construct, operate, or maintain the cable system as required by this Part or pursuant to a pertinent franchise agreement, for defrauding or attempting to defraud the Township or subscribers, or for any other material violation of this Part including, but not limited to, violations of § 13-121 or 13-122 hereunder, or a franchise agreement. To invoke the provisions of this section, the Township shall give the franchisee written notice via certified mail of the default in its performance. If within 30 calendar days following such written notice from the Township to the franchisee, the franchisee has not taken corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the Township, the Township may give written notice via certified mail to the franchisee of its intent to revoke the franchise, stating its reasons; provided that, no opportunity to cure shall be provided where it is demonstrated that the franchisee has defrauded or attempted to defraud the Township or its subscribers.
B.
Procedure. Prior to revoking a franchise, the Township shall hold
a public hearing, upon 30 calendar days' notice published and sent
certified mail to the franchisee, at which time the franchisee and
the public shall be given an opportunity to be heard. Following the
public hearing, the Township may determine whether to revoke the franchise
based on the information of record. If the Township determines to
revoke a franchise, it shall issue a written decision within 30 days
setting forth the reasons for its decision. A written copy of such
decision shall be transmitted to the franchisee. Nothing herein shall
be deemed to limit franchisee's rights to administrative hearings
otherwise provided under state law.
C.
Rights upon Revocation. If the Township revokes a franchise, or if
for any other reason a franchisee abandons, terminates, or fails to
operate or maintain service to its subscribers, the following procedures
and rights are effective:
(1)
The Township may require the former franchisee to remove its
facilities and equipment at the former franchisee's expense. If the
former franchisee fails to do so within a reasonable period of time,
the Township may have the removal done at the former franchisee's
and/or surety's expense.
(2)
In the event of revocation, the Township, by resolution, may
acquire ownership of the cable system at an equitable price as determined
by fair market value; for example, for the price of a cable system
similar to the one covered by this franchise.
(3)
If a cable system is abandoned by a franchisee or the franchisee
fails to operate or maintain service to its subscribers or otherwise
terminates the franchise, the ownership of all portions of the cable
system in public streets or rights-of-way shall revert to the Township
and the Township may sell, assign, or transfer all or part of the
assets of the system.
(4)
Notwithstanding the above, franchisee shall not be required
to remove its cable system or to sell the cable system, or any portion
thereof as a result of revocation, denial of renewal, or any other
lawful action to forbid or disallow franchisee from providing cable
service, if the system is actively being used to facilitate any other
services not governed by Title VI of the Communications Act of 1934,
as amended, or any portion thereof.
[Ord. 2008-03, 11/19/2008, § 19]
1.
In any franchise granted, the franchisee shall comply with negotiated
Township requirements including, but not limited to, construction,
design and technical standards of the cable system; system reporting
requirements; and insurance and bonding provisions. Further, the franchisee
shall design all systems in a manner which reduces intrusions into
the public streets or rights-of-way including, but not limited to,
the following:
A.
A franchisee shall install all new transmission or other facilities
in underground conduit if feasible from an engineering standpoint
on streets or public rights-of-way where electrical utility, telephone
wiring, or facilities of any other franchisee are located underground,
either at the time of initial construction of a cable system or at
any time thereafter, a franchisee's wiring shall also be located underground
at the franchisee's expense.
B.
If underground facilities are not feasible from an engineering standpoint,
franchisee shall attach, where otherwise permitted, to existing poles
in public rights-of-way, and only if surplus space is available. Copies
of agreements for use of conduits, poles or other facilities shall
be filed with the Township upon request.
C.
At minimum, a franchisee shall serve all residential dwelling units
within the Township: (1) in which there exists a minimum of 35 homes
per linear mile into which service can otherwise be extended; and
(2) provided such residential dwelling unit is located within 150
linear feet of the distribution cable.
[Ord. 2008-03, 11/19/2008, § 20]
1.
Fines.
A.
In the event that an operator does not comply with a material provision
of the franchise, i.e., a violation or noncompliance that causes harm
to the Township or any of its residents or businesses, the Township
may assess a fine against the operator as follows: $100 per day depending
on the violation. Each day that a violation continues shall be a separate
violation for which a separate fine may be imposed. The invocation
of this subsection is limited to a 120-day period, after which time
the Township may then commence revocation proceedings and/or pursue
all of the remedies that it has under statute, law and/or equity.
B.
Prior to assessing damages for a violation under this section, the
Township shall provide an operator written notice of such violation
and a thirty-day period in which to cure the violation.
2.
Civil Penalties.
A.
In addition to any fine which may be imposed by the Township, any
person or operator violating or failing to comply with any of the
provisions of this Part or any franchise issued pursuant thereto shall
be liable for any and all damage to Township property, public rights-of-way
or private property arising from such violation, including the cost
of restoring the affected area to its condition prior to the violation.
B.
Notwithstanding any other provision of this Part, the Township may
seek legal or equitable relief to enjoin any acts or practices and
abate any condition which constitutes or will constitute a violation
of the applicable provisions of this Part or any franchise issued
pursuant thereto when civil or criminal penalties are inadequate to
effect compliance.
[Ord. 2008-03, 11/19/2008, § 21]
1.
Trees and shrubs or other landscaping on the private property of
a Township resident that are damaged by an operator, or any employee,
agent or subcontractor of an operator, during surveying, installation,
servicing or construction, or in the process of servicing adjacent
private properties or structures, shall promptly be restored to their
prior condition or replaced. Trees and shrubs on private property
shall not be removed without the prior written permission of the owner
of the property. Notwithstanding the above, franchisee retains the
authority to trim trees or shrubs in the public rights-of-way overhanging
any of its cable system so as to prevent contact with wires, cables,
or other equipment. All such trimming shall be done at the franchisee's
sole cost and expense. No trees or shrubs in a public right-of-way
shall be removed without the prior written consent of the Township.
2.
An operator shall, at its own cost and expense, and in a manner approved
by the property owner, repair any damage or restore any private property
to as reasonably good as condition as before the work causing such
damage or disturbance was initiated. The operator shall repair, replace
or compensate all property owners for damages resulting from the operator's
surveying, installation, construction, servicing or repair activities.
3.
Except in the case of an emergency involving public safety or service
interruption to a large number of subscribers, the operator shall
give reasonable notice to property owners or legal tenants prior to
entering upon private premises, and the notice shall specify the work
to be performed; provided that, in the case of planned construction
operations, such notice shall be delivered or provided to the property
owner at least 24 hours prior to entry.
4.
Nothing herein shall be construed as authorizing access or entry
to private property, or any other property, upon which an operator
does not have a property right.
5.
The operator shall clean all areas surrounding any work site of debris
caused by the operator's activities and ensure that all cable materials
are disposed of properly.
[Ord. 2008-03, 11/19/2008, § 22]
1.
Federal Minimum Customer Service Standards Adopted. Franchisee shall
comply with the minimum customer service standards as set forth at
47 CFR 76.309 or such other or additional standards established by
the franchise agreement, federal or state law or regulation whether
now or hereafter enacted, to the extent that such other customer service
standards are not preempted by the federal or state law.
2.
Enforcement. The Board of Supervisors, or its designated representative
or agent, 90 days after giving notice to the operator of the Township's
intent to enforce the minimum customer service standards to the fullest
extent permitted by the federal or state law and in accordance with
all substantive and procedural requirements of the federal or state
law, including, without limitation, shall have the authority to:
[Ord. 2008-03, 11/19/2008, § 24]
In the event that the terms of this Part conflict with the terms
of any other agreement between the Township and franchisee, the terms
of this Part shall control.
