[HISTORY: Adopted by the Borough Council of the Borough of
Vandergrift 9-11-2006 by Ord. No.
4-2006. Amendments noted where applicable.]
Terms. For the purpose of this ordinance, the following terms,
phrases, words and abbreviations shall have the meanings ascribed
to them below. When not inconsistent with the context, words used
in the present tense include the future tense, words in the plural
number include the singular number, and words in the singular number
include the plural number:
An entity which owns or controls, is owned or controlled
by, or is under common ownership with grantee.
The service tier which includes the retransmission of local
broadcast television signals required to be carried on the cable system,
for which grantee charges the lowest monthly charge.
The Cable Communications Policy Act of 1984, as amended.
(i) The one-way transmission to subscribers of video programming
or other programming service, and (ii) subscriber interaction, if
any, which is required for the selection or use of such video programming
or other programming service.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
or other communications equipment that is designed to provide cable
service to subscribers.
Federal Communications Commission or successor governmental
entity thereto.
The initial authorization, or renewal thereof, issued by
the franchising authority, whether such authorization is designated
as a franchise, permit, license, resolution, contract, certificate,
or otherwise, which authorizes construction and operation of the cable
system for the purpose of offering cable service or other service
to subscribers.
The Borough of Vandergrift, or the lawful successor, transferee
or assignee thereof.
Comcast of California/Pennsylvania/Utah/Washington, Inc.
or the lawful successor, transferee or assignee thereof.
The revenue derived by the grantee from the operation of
the cable system in the service area to provide cable services, calculated
in accordance with generally accepted accounting principles, including
but not limited to monthly basic, expanded basic, premium, pay-per-view
fees, installation fees, equipment rental fees, late fees, leased
access fees, advertising and home shopping revenue, and the amount
of the franchise fee itself. Gross revenue shall not include refundable
deposits, bad debt, investment income, nor any taxes, fees or assessments
imposed or assessed by any governmental authority.
An individual, partnership, association, joint stock company,
trust corporation, or governmental entity.
The surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, parkway, way, lane, public way, drive, circle or other public
right-of-way, including public utility easements, dedicated utility
strips or rights-of-way dedicated for compatible uses and any temporary
or permanent fixtures or improvements located thereon now or hereafter
held by the franchise authority in the service area which shall entitle
the franchise authority and the grantee to the use thereof for the
purpose of installing, operating, repairing and maintaining the cable
system. "Public way" shall also mean any easement now or hereafter
held by the franchise authority within the service area for the purpose
of public travel or for utility or public service use dedicated for
compatible uses, and shall include other easements or rights-of-way
as shall within their proper use and meaning entitle the franchise
authority and the grantee to use thereof for the purposes of installing
or transmitting grantee's cable service or other service over
poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, compliances, attachments and other property as may be
ordinarily necessary and pertinent to the cable system. This definition
does not include private property, streets or easements.
The present municipal boundaries of the franchising authority
and shall include any additions thereto by annexation or other legal
means.
A person or entity who lawfully receives cable services or
other service therefrom with grantee's express permission.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
A.
Grant. The Borough hereby grants to grantee a nonexclusive franchise
which authorizes the grantee to construct and operate a cable system
and offer cable service and other services in, along, among, upon,
across, above, over, under or in any manner connected with public
ways within the service area and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain or retain in, on,
over, under, upon, across or along any public way, and all extensions
thereof and additions thereto, such poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances,
attachments, and other related property or equipment as may be necessary
or pertinent to the cable system.
B.
Term. The franchise granted pursuant to this ordinance shall be for an initial term of 15 years from the effective date of the franchise as set forth in Subsection C, unless otherwise lawfully terminated in accordance with the terms of this ordinance.
C.
Effective date. The effective date of this franchise granted pursuant
to this ordinance shall be September 11, 2006.
D.
Nonexclusive grant. The right to use and occupy said public ways,
as defined above, for the purposes herein set forth shall not be exclusive
in grantee. However, the franchise authority shall require a franchise
agreement for any other person or entity, as defined above, engaging
in the cable service business within any portion of the Borough. Further,
no such 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; 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 grantee,
contains more favorable or less burdensome terms or conditions than
this franchise agreement, the franchising authority agrees that it
shall amend this franchise agreement to include any more favorable
or less burdensome terms or conditions. In the event a change in federal
or state law provides for an alternative franchising or licensing
scheme, grantee shall have the right to provide the Borough with notice
of its election of the new franchising or licensing scheme and to
terminate this franchise prior to expiration.
A.
Conditions of street occupancy. All transmission and distribution
structures, poles, other lines, and equipment installed or erected
by the grantee pursuant to the terms hereof shall be so located so
as to cause a minimum of interference with the proper use of public
ways and with the rights and reasonable convenience of property owners
who own property that adjoins any of said public ways. Except for
existing facilities, the grantee shall not place, or caused to be
placed, any transmission and distribution structures, poles, other
lines or other equipment above, over, under, across, through or in
any way connected with the public ways of the municipality without
first obtaining written approval of the franchise authority.
B.
Restoration of public ways. If during the course of grantee's
construction, operation or maintenance of the cable system there occurs
a disturbance of any public way by grantee, it shall at its own cost
and expense replace and restore such public way to a condition satisfactory
to the franchise authority.
C.
Relocation at request of franchising authority. The grantee upon notice by the franchising authority shall, at its own expense, protect, support, temporarily disconnect, relocate on the same street or other public way, or remove from such street or other public way, any of its property when required to do so by the franchising authority because of street or other public excavation, construction, repair, regrading or grading, traffic conditions, installation of sewers, drains, water pipes, municipally owned power or signal lines, vacation or relocation of streets, or any other type of structures or improvement necessary for the public health, safety and welfare; but the grantee shall, in all cases, have the right of abandonment of its property. However, grantee agrees, at the request of the municipality, to remove or arrange for removal of all property existing in aerial installations and all aboveground equipment associated with underground service no longer utilized by the grantee. Furthermore, in only those cases where public safety or completion of a mandatory construction or excavation project will be adversely affected, the grantee will remove portions of underground cable as necessary. Should the franchise authority make application to any public agency or other funding source which provides monetary reimbursement for relocation or replacement of existing transmission pipes, power lines or communications facilities, etc., such application shall include a request made on behalf of the grantee to cover costs of relocation or replacement of grantee's property. Should said public fund reimbursement request to fully compensate grantee be denied, and should the franchising authority and the grantee be unable to agree on an acceptable method and amount of reimbursement, then grantee shall be released from any obligation to provide cable service to the affected street or area. However, and in all cases involving relocation, the grantee shall make a special effort to relocate cable system on facilities which exist in alleys and on secondary streets, thereby reducing cost to the grantee and/or the franchising authority. Determination as to economic feasibility of relocation shall be made according to the provisions of Subsection I which follows. All relocations addressed in this Subsection C shall be discussed with the franchising authority.
D.
Relocation at request of third party. The grantee shall, on the request
of any person holding a building moving permit issued by the franchising
authority, temporarily raise or lower its wires to permit the moving
of such building, provided: (a) the expense of such temporary raising
or lowering of wires is paid by said person, including, if required
by the grantee, making such payment in advance; and (b) the grantee
is given not less than 10 business days' advance written notice to
arrange for such temporary wire changes.
E.
Trimming of trees and shrubbery. The grantee may trim trees or other
vegetation owned by the municipality to prevent their branches or
leaves from touching or otherwise interfering with its wires, cables
or other structures. All trimming and pruning shall be at the expense
of the grantee. All trimming or pruning provided for herein shall
be done under the supervision and direction of the appropriate municipal
committee.
F.
Use of grantee's equipment by franchising authority. Subject
to any applicable state or federal regulations or tariffs, the franchising
authority shall have the right to make additional use, for any public
purpose, of any poles or conduits controlled or maintained exclusively
by or for the grantee in any public way, provided that: (a) such use
by the franchising authority does not interfere with a current or
future use by the grantee; (b) the franchising authority holds the
grantee harmless against any and from all claims, demands, costs or
liabilities of every kind and nature whatsoever arising out of such
use of said poles or conduits, including, but not limited to, reasonable
attorneys' fees and costs.
G.
Safety requirements. Construction, installation and maintenance of
the cable system shall be performed in an orderly and workmanlike
manner. All such work shall be performed in accordance with applicable
safety code or technical requirements, including, but not limited
to, National Electrical Safety Code (National Bureau of Standards);
National Electrical Code (National Bureau of Fire Underwriters); and
applicable FCC or other federal, state and local regulations. The
cable system shall not endanger or interfere with the safety of persons
or property in the service area. In particular, grantee shall comply
with all federal laws or regulations which govern cable plant signal
leakage or interference with communications media.
H.
Aerial and underground construction. All installations shall be underground
in those areas of the municipality where both telephone and electric
utilities' facilities are underground at the time of the installation
of the grantee's transmission and distribution facilities. In
areas where the telephone and/or the electric utilities' facilities
are above the ground at the time of the installation of the grantee's
cable system, the grantee may install its service above the ground
only upon condition that at such time as those facilities are placed
underground by the telephone and electric companies, the grantee shall
likewise place its facilities underground at its sole cost and expense.
I.
Required extensions of service. The cable system as presently constructed
is hereby approved as to extent of service area; grantee is hereby
authorized to extend the cable system as necessary, as desirable,
or as required pursuant to the terms hereof within the service area.
Whenever grantee shall receive a request for cable service from at
least 15 subscribers within 1,320 cable bearing strand feet (one-quarter
cable mile) of its trunk cable, it shall extend its cable system to
such subscribers at no cost to said subscribers for system extension,
other than the usual connection fees for all subscribers, provided
that such extension is technically feasible and if it will not adversely
affect the operation, financial condition or market development of
the cable system.
J.
Subscriber charges for extensions of cable service. No subscriber
shall be refused cable service arbitrarily. However, for unusual circumstances,
such as requirements for underground cable, or where there is more
than 125 feet of distance from distribution cable to connection of
service to subscribers or a density of less than 15 subscribers per
1,320 cable bearing strand feet of trunk or distribution cable, grantee
may establish a special fee. Service may be made available on the
basis of cost of material, labor and easements as a special fee, in
order that existing subscribers shall not be unfairly burdened.
K.
Service to public buildings. The grantee shall provide without charge one outlet of basic cable service to each governmental office building, fire station, police station, and public, private and parochial elementary and secondary school building that is passed by its cable system. The outlets of basic service shall not be used to distribute or sell cable services in or throughout such buildings, nor shall such outlets be located in common or public areas open to the public. Users of such outlets shall hold grantee harmless from any and all liability or claims arising out of their use of such outlets, including but not limited to those arising from copyright liability. Notwithstanding anything to the contrary set forth in this Subsection K, the grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to said buildings or premises exceeds 125 cable feet, unless it is feasible and if it will not adversely affect the operation, financial condition or market development of the cable system to do so, or unless the appropriate governmental entity agrees to pay the incremental cost of such drop line in excess of 125 cable feet. In the event that additional outlets of basic service are provided to such buildings, the building owner shall pay the usual installation and service fees associated therewith.
L.
Emergency alert system. Grantee shall comply with the FCC's
Emergency Alert System requirements throughout the term of the franchise.
M.
Technical standards. The grantee shall comply with all applicable
technical standards of the FCC as published in subpart K of 47 CFR
76. To the extent those standards are altered, modified or amended
during the term of this franchise, the grantee shall comply with such
altered, modified or amended standards within a reasonable period
after such standards become effective. Upon request, the franchising
authority shall have the opportunity to review the grantee's
test results verifying compliance with this section.
A.
Franchise fee. Grantee shall pay to the franchising authority a franchise fee equal to 5% of gross revenues, as defined in § A520-1, received by grantee from the operation of the cable system. Franchise fee payments due the franchising authority under this section shall be computed quarterly. For the purpose of the franchise fee computation, the applicable accounting period shall be a calendar year, unless otherwise agreed to in writing by the franchising authority and grantee. The quarterly franchise fee payments shall be due and payable 60 days after the close of the preceding quarter. Each payment shall be accompanied by a brief report from a representative of the grantee showing the basis for the computation. In no event shall the franchise fee payments required to be paid by the grantee exceed 5% of gross revenues received by grantee in any twelve-month period. The franchise fee payment shall be the sole compensation due, and no other fee, charge or other consideration shall be paid by the grantee. Sales tax or other tax levied on a per-subscription basis and collected by grantee shall be deducted from gross revenues in computing any sum due.
B.
Rates and charges. The franchising authority may not regulate the
rates for the provision of cable service and other service provided
over a cable system to cable subscribers except as authorized by the
Cable Act.
C.
Renewal of franchise. Renewal of this franchise shall be governed
by and comply with the provisions of Section 626 of the Cable Act.
D.
Conditions of sale. Subject to federal and state law, in the event
that renewal of the franchise is denied or the franchise is revoked
for cause by the franchising authority, the conditions of the sale
shall be in accordance with the provisions of the Cable Act.
E.
Transfer of franchise. Neither the grantee nor any other person may
transfer the cable system or the franchise without the prior written
consent of the franchising authority, which consent shall not be unreasonably
withheld or delayed. No change in control of the grantee, defined
as an acquisition of 50% or greater ownership interest in grantee,
shall take place without the prior written consent of the franchising
authority, which consent shall not be unreasonably withheld or delayed.
No consent shall be required, however, for: (i) a transfer in trust,
by mortgage, hypothecation, or by assignment of any rights, title,
or interest of the grantee in the franchise or in the cable system
in order to secure indebtedness; or (ii) a transfer to an entity directly
or indirectly owned or controlled by Comcast Corporation. Within 30
days of receiving a request for consent, the franchising authority
shall, in accordance with FCC rules and regulations, notify the grantee
in writing of the additional information, if any, it requires to determine
the legal, financial and technical qualifications of the transferee
or new controlling party. If the franchising authority has not taken
action on the grantee's request for consent within 120 days after
receiving such request, consent shall be deemed given.
A.
Books and records. The grantee agrees that the franchising authority
may review such of its books and records as are reasonably necessary
to monitor compliance with the terms hereof. Such records shall include,
but shall not be limited to, any public records required to be kept
by the grantee pursuant to the rules and regulations of the FCC. Notwithstanding
anything to the contrary set forth herein, grantee shall not be required
to disclose information which is proprietary or confidential in nature.
The franchising authority agrees to treat any information disclosed
by the grantee on a confidential basis, and only to disclose it to
employees, representatives and agents thereof that have a need to
know, or in order to enforce the provisions hereof. Confidentiality
shall be strictly maintained in this manner unless prevailing law
requires action to the contrary. All such documents pertaining to
financial matters that may be the subject of an inspection by the
franchising authority shall be retained by the grantee for a minimum
period of three years.
B.
Periodic review. Beginning three years after the effective date of
the franchise, and every three years thereafter, the franchising authority
may on its own initiative, and shall at the request of the grantee,
schedule a public meeting for the purpose of reviewing the performance
of the grantee under the franchise. The franchising authority shall
notify grantee of the time and place of such meeting and provide the
grantee with an opportunity to be heard. The public shall be afforded
appropriate notice and opportunity for comment. Within four months
of such meeting, the franchising authority shall provide grantee with
a written copy of its findings.
A.
Insurance requirements.
(1)
The grantee shall obtain, effective from the date of the enactment
of this ordinance granting a franchise, and shall keep in full force
and effect during the entire term of such franchise, or any extension
thereof, a policy of comprehensive general liability insurance, duly
executed by the officers or authorized representatives of a responsible
and nonassessable insurance company, evidencing minimum coverages
for the benefit of the municipality as an additional insured of not
less than the sum of $500,000 for bodily injury, including death to
any one person, and not less than $1,000,000 for bodily injury or
death on account of any one occurrence, and not less than $100,000
for damage to property in any one accident. A certificate of insurance
verifying such policy shall be delivered to the municipality upon
the enactment of such ordinance.
(2)
The grantee shall also carry Workers' Compensation Insurance covering
all of its employees subject to the Workers' Compensation Act of the
Commonwealth of Pennsylvania and shall furnish the municipality with
a certificate of insurance upon the enactment of such ordinance.
(3)
The insurance heretofore mentioned shall be noncancellable except
upon 30 days' prior written notice to the municipality.
B.
Indemnification. The grantee shall indemnify, defend and hold harmless
the franchising authority, its officers, employees, and agents from
and against any liability or claims resulting from property damage
or bodily injury (including accidental death) that arise out of the
grantee's construction, operation, maintenance or removal of
the cable system, including, but not limited to, reasonable attorneys'
fees and costs, provided that the franchising authority shall give
the grantee written notice of its obligation to indemnify and defend
the franchising authority within 10 business days of receipt of a
claim or action pursuant to this section. If the franchising authority
determines that it is necessary for it to employ separate counsel,
the costs for such separate counsel shall be the responsibility of
the franchising authority.
C.
Bonds. The grantee shall file with the Municipal Secretary and shall maintain in full force and effect during the term hereof a corporate surety bond or other adequate surety agreement in the amount of $20,000. The bond or agreement shall be conditioned that, in the event that grantee shall fail to pay the franchise fee due the municipality under the terms of § A520-4A, then there shall be recoverable jointly and severally from the principal and surety any damages or loss or costs suffered or incurred by the municipality as a result thereof, including attorney's fees and costs of any action or proceeding, and including the full amount of any compensation or indemnification up to the full principal amount of such bond. Said condition shall be a continuing obligation during the entire term of this ordinance.
A.
Notice of violation. In the event that the franchising authority
believes that the grantee has not complied with the terms of the franchise,
it shall notify grantee of the exact nature of the alleged noncompliance
in writing.
B.
Grantee's right to cure or respond. Grantee shall have 30 days from receipt of the notice described in Subsection A to respond to the franchising authority, contesting the assertion of noncompliance, or to cure such default or, in the event that, by the nature of default, such default cannot be cured within the thirty-day-period, initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
C.
Enforcement.
(1)
Subject to applicable federal and state law, in the event the franchising
authority, after such meeting, determines that grantee is in default
of any provision of the franchise, the franchising authority may:
(a)
Pursue any and all remedies legal or equitable and available
to the franchising authority.
(b)
In the case of a default of a material provision of the franchise,
declare the franchise to be revoked in accordance with the following:
[1]
The franchising authority shall give written notice to the grantee
of its intent to revoke the franchise on the basis of a pattern of
noncompliance by the grantee, including one or more instances of substantial
noncompliance with a material provision of the franchise. The notice
shall set forth with specificity the exact nature of the noncompliance.
The grantee shall have 90 days from the receipt of such notice to
object in writing and to state its reasons for such objection. In
the event the franchising authority has not received a response from
the grantee or, upon receipt of the response, does not agree with
the grantee's proposed remedy, it may then seek termination of
the franchise at a public hearing. The franchising authority shall
cause to be served upon the grantee, at least 10 days prior to such
public hearing, a written notice specifying the time and place of
such hearing and stating its intent to request termination of the
franchise.
[2]
At the designated hearing, the franchising authority shall give
the grantee an opportunity to state its position on the matter, present
evidence and question witnesses, after which it shall determine whether
or not the franchise shall be revoked. The public hearing shall be
on the record, and a written transcript shall be made available to
the grantee within 10 business days. The decision of the franchising
authority shall be in writing and shall be delivered to the grantee
by certified mail. The grantee may appeal such determination to an
appropriate court, which shall have the power to review the decision
of the franchising authority "de novo" and to modify or reverse such
decision as justice may require. Such appeal to the appropriate court
must be taken within 60 days of the issuance of the determination
of the franchising authority.
(2)
The grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the franchise by reason of any failure
of the franchising authority to enforce prompt compliance.
D.
Immunity. The grantee shall not be held in default or noncompliance
with the provisions of the franchise, nor suffer any enforcement or
penalty relating thereto, where such noncompliance or alleged defaults
are caused by strikes, acts of god, or other events reasonably beyond
its ability to control.
A.
Customer service standards. The franchising authority hereby adopts
the customer service standards set forth in Part 76, § 76.309
of the FCC's Rules and Regulations, as amended. The grantee shall
comply in all respects with the customer service requirements established
by the FCC.
B.
Customer bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to customers and in a way that: (i) is not misleading and (ii) does not omit material information. Notwithstanding anything to the contrary in Subsection A above, the grantee may, in its sole discretion, consolidate costs on customer bills as may otherwise be permitted by Section 622(c) of the Cable Act [47 U.S.C. § 542(c)].
C.
Privacy protection. The grantee shall comply with all applicable
federal and state privacy laws, including Section 631 of the Cable
Act and regulations adopted pursuant thereto.
A.
Actions of grantee and franchising authority. In any action by the
grantee and the franchising authority or representative thereof mandated
or permitted under the terms hereof, such party shall act in a reasonable,
expeditious and timely manner.
B.
Notice. All notices shall be in writing and shall be sufficiently
given and served upon the other party by hand delivery, first class
mail, registered or certified, return receipt requested, postage prepaid,
or by reputable overnight courier service, and addressed as follows:
(1)
To the franchising authority:
|
Borough of Vandergrift
151 Lincoln Avenue
Vandergrift, PA 15690
Attn.: Borough Secretary/Manager
|
(2)
To the grantee:
|
Comcast of California/Pennsylvania/Utah/Washington, Inc.
610 Epsilon Drive
Pittsburgh, PA 15238
Attn: Vice President/General Manager
|
(3)
With a copy to:
|
Comcast
Northern Division
676 Island Pond Road
Manchester, NH 03109
Attn.: Vice President, Government Affairs
|
C.
Descriptive headings. The captions to sections contained herein are
intended solely to facilitate the reading thereof. Such captions shall
not affect the meaning or interpretation of the text herein.
D.
Severability. If any section, sentence, term, paragraph or provision
hereof is determined to be illegal, invalid or unconstitutional by
any court of common jurisdiction or by any state or federal regulatory
authority having jurisdiction thereof, such determination shall have
no effect on the validity of any other section, sentence, term, paragraph
or provision hereof, all of which will remain in full force and effect
for the term of the franchise.
E.
Compliance with applicable laws and ordinances. The grantee shall
at all times during the life of this ordinance be subject to all lawful
exercise of the police power by the municipality. The municipality
reserves the right to adopt from time to time, in addition to the
provisions herein contained, such ordinances as may be necessary in
the exercise of police power. Such regulation shall be reasonable
and not in derogation of the rights herein granted, nor in conflict
with the laws of the state or other local or federal laws or regulations.
F.
Obscenity. The grantee and all other persons using or making use
of the cable system shall comply in all respects with all federal
and state laws regarding obscenity.
