[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
The following terms used in this Part 2A shall have the following
meanings:
Those channels engineered at the headend of a cable system
for the provision of services generally available to residential subscribers
of the cable system, regardless of whether such services actually
are provided, including any channel designated for public, educational,
or governmental use.
Any person who, directly or indirectly, owns or controls,
is owned or controlled by, or is under common ownership or control
with the franchisee.
Any service tier which includes the retransmission of local
television broadcast signals and public, educational and governmental
(PEG) channels required by this franchise.
Over-the-air transmission by a radio or television station.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel (as "television channel" is defined by the FCC by regulation).
Service Electric Cable Television, 2260 Avenue A, LVIP #1,
Bethlehem, PA 18017, and/or any person or group of persons:
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of this Act, except that such
facility shall be considered a cable system [other than for purposes
of § 621(c)] to the extent such facility is used in the
transmission of video programming directly to subscribers, unless
the extent of such use is solely to provide interactive on-demand
services;
An open video system that complies with § 653 of this
title; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
The Communications Act of 1934, P.L. No. 416, Act of June 19, 1934, Ch. 652, 48 Stat. 1064, as amended, codified as Chapter 5 of Title 47 of the United States Code, 47 U.S.C. § 151 et seq.
Programming produced locally or otherwise for distribution
on any public, education or government access channel.
Cable system operators or other telecommunications service
providers whose actual or proposed service areas overlap.
Coaxial, fiber-optic or other cable that connects a home
or building to the subscriber network.
The United States Federal Communications Commission or successor
governmental entity thereto.
An initial authorization, or renewal thereof (including a
renewal of an authorization which has been granted subject to § 626
of the Cable Communications Act), issued by a franchising authority,
whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a cable system within
the corporate limits of Salisbury Township, "the franchising authority."
Tax, fee, or assessment of any kind imposed by a franchising
authority or other governmental entity on a cable operator or cable
subscriber, or both, solely because of their status as such.
The term "franchise fee" does not include:
Any tax, fee, or assessment of general applicability (including
any such tax, fee, or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee, or assessment
which is unduly discriminatory against cable operators or cable subscribers);
In the case of any franchise in effect on the date of the enactment
of this Part 2A, payments which are required by the franchise to be
made by the cable operator during the term of such franchise for,
or in support of the use of, public, educational, or governmental
access facilities;
In the case of any franchise granted after such date of enactment,
capital costs which are required by the franchise to be incurred by
the cable operator for public, educational, or governmental access
facilities;
Requirements or charges incidental to the awarding or enforcing
of the franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages;
or
Any fee imposed under Title 17, United States Code.
For any twelve-month period, the fees paid by such person with
respect to any such cable service or other communications service
shall be 5% of such person's gross revenues derived in such period
from the provision of such service over the cable system.
Service Electric Cable Television, 2260 Avenue A, LVIP #1,
Bethlehem, PA 18017, an operator, licensed and authorized by the franchising
authority to occupy the public right-of-way for its operation of a
cable communication system or cable system within the municipal boundaries
of Salisbury Township.
Salisbury Township, Lehigh County, Pennsylvania.
The field strength of a television broadcast station computed
in accordance with regulations promulgated by the Commission.
Any and all revenue and compensation actually received by
the operator or its affliated entities arising from the operation
of its cable system within the Township, including, but not limited
to, monthly fees received from subscribers for basic service; monthly
fees received from subscribers for any optional video service; pay
television and pay-per-view fees; FM service fees; premium service
fees; monthly fees received from subscribers for tier of service other
than basic cable service; installation, disconnection and converter
rentals and sales. Gross revenues shall also include late fees and
revenues from cable television guides. Gross revenues shall not include
advertising income, any bad debts, its converter deposits, refunds
to subscribers by grantee or receipts from sales, use or franchise
fees or taxes or any other tax or fee that grantee collects on behalf
of Township or any other taxing authority, or income derived from
the provision of any service not set forth in this definition. Gross
revenues shall also include any telecommunications service and wireless
service provided by grantee's cable system to subscribers or
any other type of comparable service provided by grantee's cable
system to subscribers; only to the extent, however, that the grantee
is required to pay a franchise fee under applicable law to Township
for the provision of the said services. If competitors are provided
similar services within the Township, grantee shall not be required
to pay any greater rate to the Township than any competitor pays the
Township for the provision of said services. (In the event that the
FCC or an appropriate jurisdiction redefines, revises or broadens
the definition of cable services as currently defined in the federal
law, then the operator agrees that it shall include any such broader
service revenue as part of its gross annual revenues payments to the
Township of Salisbury, including, but not limited to, internet access.)
A service providing video programming to subscribers over
switched networks on an on-demand, point-to-point basis, but does
not include services providing video programming prescheduled by the
programming provider.
A person such as, but not limited to, a cable operator, a
multichannel multipoint distribution service, a direct broadcast satellite
service, or a television receive-only satellite program distributor,
who makes available. for purchase, by subscribers or customers, multiple
channels of video programming.
Information that a cable operator makes available to all
subscribers generally.
Interior receptacle that connects a television set to the
cable communications system.
An individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
Video or audio signal carried over the cable communications
system.
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, but not limited to, 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 Township in the service area
which shall entitle the Township and grantee to the use thereof for
the purpose of installing, operating, repairing and maintaining the
cable system. "Public right-of-way" shall also mean any easement now
or hereafter held by the Township 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 Township
and grantee to the use thereof for the purposes of installing or transmitting
grantee's cable service over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and pertinent to
the cable system.
A category of cable service provided by a cable operator
and for which a separate rate is charged by the cable operator.
Any state, or political subdivision, or agency thereof.
Person or entity who contracts with the franchisee for, and
lawfully receives, the video signals and cable services distributed
by the cable system.
Trunk and feeder signal distribution network over which video,
audio, text, digital and data signals are transmitted to or from subscriber.
Corporations, other than operator, in an unbroken horizontal
or vertical chain of corporations connected to operator, if, at the
time of the execution of the franchise agreement, each of the corporations
other than the last corporation in the unbroken chain or any parent
or subsidiary corporation or affiliated corporation own stock comprising
50% or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
Activated channels of a cable system, except those channels
whose use for the distribution of broadcast signals would conflict
with technical and safety regulations as determined by the FCC.
A person or entity who contracts with the franchisee for
and lawfully distributes or receives video signals and cable communications
system services distributed by the franchisee.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Grant of Franchise. Pursuant to the authority of the First-Class
Township Code of the Commonwealth of Pennsylvania and the Communications
Act of 1934, as amended, Salisbury Township hereby grants a nonexclusive
franchise to operator, authorizing and permitting operator to construct,
operate and maintain, in Salisbury Township's public rights-of-way,
a cable communications system within the corporate limits of Salisbury
Township. Subject to the terms and conditions herein, Salisbury Township
hereby grants to operator the right to construct, upgrade, install,
operate, extend and maintain a cable communications system, including
such lines, cables, fiber optics, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary and appropriate to the operation
of the cable communications system in, under, over, along, across
and upon the streets, lanes, avenues, alleys, sidewalks, bridges,
highways and other public places and rights-of-way under the jurisdiction
of Salisbury Township with the municipal boundaries and subsequent
additions thereto, including property over which Salisbury Township
has a sufficient easement or right-of-way, for the purpose of reception,
transmission, amplification, origination, distribution or redistribution
of video, audio, text, data and other electronic signals and impulses.
2.
Term, Nonexclusivity. The term of this nonexclusive agreement shall
be for a period of 10 years and shall commence once a franchise is
granted by the Township Board of Commissioners and shall terminate
at 12:00 midnight, 10 years thereafter. The period of the franchise
granted will be noted in each franchise and renewal franchise ordinance.
3.
Pole and Conduit Attachment Rights. Permission is hereby granted
to operator to attach or otherwise affix cables, wire or optical fibers
comprising the cable communications system to the existing poles and
conduits on and under public streets and ways; provided, operator
secures the permission and consent of the public utility companies
to affix the cables and/or wires to their pole and conduit facilities.
By virtue of this franchise, Salisbury Township grants operator equal
standing with power and telephone utilities in the matter of placement
of facilities on public rights-of-way.
4.
Police and Regulatory Powers. Operator's rights under this franchise
agreement are subject to the police powers of Salisbury Township to
adopt and enforce general laws necessary for the safety and welfare
of the public.
5.
Waiver of Rights. No course of dealing between operator and Salisbury
Township, nor any delay on the part of Salisbury Township in exercising
any rights hereunder, shall operate as a waiver of any such rights
of Salisbury Township or acquiescence in the actions of operator in
contravention of such right, except to the extent expressly waived
by Salisbury Township or expressly provided for in the Part; provided,
however, Salisbury Township shall provide operator with notice and
an opportunity to cure any such violation within a reasonable period
of time after actual knowledge of said violation.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Area to Be Served.
A.
Operator shall provide cable service to all persons requesting cable
services within Salisbury Township and to any new service areas covered
by the operator.
B.
Service shall be provided to every dwelling occupied by a person
requesting cable service; provided that operator is able to obtain
from the property owners any necessary easements and/or permits in
accordance with § 621(a)(2) of the Federal Cable Communications
Act of 1984, as amended. Operator shall extend the cable system into
all areas within Salisbury Township where there are a minimum of 35
dwelling units or lots approved and authorized for dwelling units
per aerial strand mile of cable and 60 dwelling units or lots approved
and authorized for dwelling units per underground mile of cable, calculated
from the end of the nearest trunk line. Operator shall use its best
efforts to commence said extensions within six months of notification
to operator by Salisbury Township that an area has met the minimum
density standard set forth herein. Operator's obligation hereunder
shall be subject to the timely performance of walk-out, make ready
and location of underground utilities by the telephone and electric
utility companies.
C.
Installation costs shall conform with the 1992 Cable Consumer Protection
Act, as amended, and regulations thereunder. Any dwelling unit within
150 feet aerial or 125 feet underground of the cable plant shall be
entitled to a standard installation rate.
D.
Provided, operator has at least 45 days' prior notice concerning
the opening of residential subdivision trenching, or of the installation
of conduit for the location of utilities, it shall install its cable
in such trenching or conduits or may seek permission to utilize alternative
trenching or conduits within a comparable time frame. If a substantial
quantity of cable is required for a large subdivision and said quantity
is not in stock, operator shall be allowed additional time for said
installation. The developer, or its designee, shall exercise reasonable
efforts to give timely notice of trenching and underground construction
to the operators that have been granted a franchise, to have access
to run their cable wire underground and comply with the Township's
Planning Code requirements of notification.
2.
Subscriber Network. Franchisee shall design, construct and maintain
a cable system covering the Township that utilizes fiber optic backbone
connections from headend to hubs, hubs to hubs, and hubs to nodes.
This cable system shall be built for digital television standards.
3.
Subscriber Network Cable Drops.
A.
Franchisee shall, at no charge to the Township, provide the following
services to all present and future public facilities in franchisee's
service area, including, but not limited to, the Township Municipal
Building, police stations, fire companies, ambulance services, public
works buildings, municipal authorities, recreational facilities, community
centers, senior citizens centers, all public and private school buildings
and public libraries.
B.
Upon the request of the Township, franchisee shall provide one cable
drop, outlet and basic and expanded basic services (or equivalent)
package to each building identified in Exhibit A.[1] No charge shall be made for standard installation or service
which is within a 125-foot distance of the cable system and franchisee
may charge for installation and service for more than one drop in
each building.
[1]
Editor's Note: See Exhibit 13-2A-A, which is included as an attachment to this chapter.
4.
Rebuild (Construction) Schedule.
A.
No poles, cables, equipment or wires for the construction, maintenance,
expansion, renovations, rebuild and operation of a cable system shall
be installed, or the installation thereof commenced, on any existing
pole, or otherwise, within the Township until the proposed location,
specifications and manner of installation of such cables, equipment
and wires shall have been set forth upon a plot or map showing the
existing poles, streets, rights-of-way or easements within the Township
where such installations are proposed, with related schedule, and
submitted in writing, by any person desiring to operate a cable system,
to the Board of Commissioners and approved by the Board of Commissioners,
in writing.
B.
Where telephone and electric utilities are both underground, operator
shall place its cables underground.
5.
Parental Control Capability.
A.
Upon request, and at no separate, additional charge, operator shall
provide subscribers with the capability to control the reception of
any video or audio channel on the cable communications system with
the use of a set top converter or other suitable equipment.
B.
Salisbury Township acknowledges that the parental control capability
may be part of a converter box and operator may charge subscriber
for use of said box.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Cable System. Operator shall upgrade and maintain a cable communications
system built for carriage of digital television signals.
2.
System Specifications. Franchisee shall design, construct and maintain
a cable system covering the Township that utilizes fiber optic backbone
connections from headend to hubs, hubs to hubs, and hubs to nodes.
This cable system shall be built for digital television standards.
3.
State-of-the-Art.
A.
Franchisee and the Township acknowledge that the technology of cable
systems is an evolving field. Franchisee's cable system in the
Township shall be capable of offering cable services that are comparable
to other cable systems owned or managed by franchisee or its affiliated
entities in the Commonwealth of Pennsylvania ("comparable systems")
pursuant to the terms of this section. The Township may send a written
notice to franchisee, not to exceed one request every two years, requesting
information on cable services offered by such comparable systems.
Within 60 days of receiving such request, franchisee shall provide
the Township with information on any cable services that are offered
in any of the comparable systems but not being offered in the Township,
the percentage of total subscribers in such comparable systems to
whom such cable services are available, and when franchisee anticipates
making such cable services available in the Township.
B.
If the identified cable services are being offered by franchisee
and/or its affiliated entities to at least 25% of the total subscribers
in the comparable systems, then the Township may require that franchisee
make such cable services available in the Township. Should the Township
determine that franchisee shall commence provision of such cable services,
then the Township and franchisee shall enter into good faith discussions
to negotiate a schedule for deployment of such cable services. The
discussions shall take into consideration the benefits from the provision
of such cable services, the cost of implementing them in the Township,
and the impact, if any, on subscriber rates.
4.
Technical Requirement.
A.
Franchisee shall operate, maintain, construct and extend the cable
system so as to provide high quality signals and reliable delivery
of one-way and two-way cable services for all programming services
throughout all parts of the Township where franchisee's cable
system exists. The cable system shall meet or exceed any and all technical
performance standards of the FCC, the National Electrical Safety Code,
the National Electric Code and any other applicable federal laws and
the law, ordinances and construction standards of the Commonwealth
of Pennsylvania and the Township.
B.
The cable system shall provide signals that are reasonably free from
co-channel interference. Should the Township provide written notice
to franchisee that it has received a historical record of complaints
of co-channel interference from subscribers, then franchisee shall
take reasonable and necessary actions to remove such co-channel interference.
C.
Standby power at the headend(s) shall be provided for a minimum of
eight hours in the event of an outage. The power supplies serving
the nodes and distribution shall be capable of providing power for
not less than six hours in the event of an electrical outage. Standby
power must activate automatically upon the failure of commercial utility
power.
5.
System Maintenance.
A.
In installing, operating and maintaining its equipment, cable and
wires, operator shall avoid damage and injury to trees, structures
and improvements in and along the routes authorized by Salisbury Township,
except as may otherwise be approved by Salisbury Township, if required
for the proper installation, operation and maintenance of such equipment,
cable and wires.
B.
The construction, maintenance and operation of the cable communications
system under this Part 2A shall be done in accordance with all applicable
laws.
C.
Operations and maintenance personnel shall be thoroughly trained
in the use of all safety equipment and the safe operation of vehicles
and equipment. All areas of the cable communications system shall
be routinely inspected and maintained so that conditions that could
develop into safety hazards for the public and/or operations and maintenance
personnel can be corrected before a hazardous condition arises. Operator
shall install and maintain its wire, cable, fixtures and other equipment
in such a manner as shall not interfere with any installations of
Salisbury Township or any public utility serving Salisbury Township.
D.
All structures and all lines, equipment and connections in, over,
under and upon streets, sidewalks, alleys and public and private ways
and places of Salisbury Township, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair.
E.
The signal of any broadcast television or radio station carried on
the cable communications system shall be carried without material
degradation in quality at all subscribing locations within the limits
imposed by the technical specifications of the cable system and as
required by the FCC. The cable system shall be operated and maintained
in compliance with the technical standards as set forth in the FCC's
rules and regulations applicable to cable television systems.
F.
Upon written notice from Salisbury Township, operator shall remedy
a general deficiency with respect to the technical standards described
herein within three months of receipt of notice and a safety deficiency
within 48 hours of receipt of notice and shall notify Salisbury Township
when the deficiency has been corrected.
6.
System Monitoring. Within 60 days of completing any construction,
and otherwise on an annual basis, franchisee shall conduct signal
monitoring and system performance tests in accordance with the regulations
of the FCC. Such capability shall enable franchisee to monitor the
signal quality of all channels delivered on the cable system.
7.
Permits. Franchisee shall apply to the Township for all required permits and shall not undertake any activities in the public rights-of-way subject to a permit without receipt of such permit, issuance of which shall not be unreasonably withheld by the Township. Franchisee shall pay a franchise fee pursuant to § 13-208, Subsection 3, and not be required to pay any permit fees.
8.
Repairs and Restoration.
A.
Whenever franchisee or any agent, including any subcontractor, takes
up or disturbs any pavement, sidewalk or other improvement of any
public or private way or place within Township, the same shall be
replaced and the surface restored in as good condition as before the
disturbance within 10 business days of the completion of the disturbance.
Upon failure of franchisee to comply within the time specified, the
Township may cause proper restoration and repairs to be made and the
expense of such work shall be paid by franchisee upon demand by the
Township along with any monetary fines applied by the Township.
B.
Whenever franchisee or any agent, including any subcontractor, shall
install, operate or maintain equipment, cable, or wires, it shall
avoid damage and injury to property, including structures, improvements
and trees in and along the routes authorized by the Township, except
as may be approved by the Township if required for the proper installation,
operation and maintenance of such equipment, cable, or wires. Franchisee
shall promptly repair and restore any private property that is damaged
as a result of construction, installation, repair or maintenance of
the cable system within 10 business days.
C.
Franchisee's operating, construction, repair and maintenance
personnel, including all agents and subcontractors, shall be trained
in the use of all equipment and the safe operation of vehicles. Franchisee's
operating, construction, repair and maintenance personnel shall follow
all safety procedures required by all applicable federal, state and
local laws and regulations. All areas of the cable system shall be
routinely inspected and maintained so that conditions that could develop
into safety hazards for the public and/or operating and maintenance
personnel may be corrected before they become a hazard. Franchisee
shall install and maintain its wires, cables, fixtures, and other
equipment in such a manner as shall not interfere with any installations
of the Township or any public utility serving the Township.
D.
Whenever franchisee or any agent, including any subcontractor, shall
disturb any pavement, sidewalk or other public property in order to
perform any underground activity, it shall utilize the Pennsylvania
One Call System prior to any such disturbance. It shall notify the
Pennsylvania One Call System no less than three and no more than 10
working days in advance of any such disturbance and adhere to any
additional requirements which the Commonwealth may establish in the
future. Franchisee shall also adhere to all requirements of the Pennsylvania
Underground Utility Line Protection Act.
E.
All structures and all lines, equipment and connections in, over,
under, and upon streets, sidewalks, alleys, and public and private
ways and places of the Township, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair. Franchisee shall not keep or maintain
disconnected or loose cables, lines, or wires on utility poles or
anywhere else in the public rights-of-way.
9.
Tree Trimming.
A.
Operator shall have authority to trim trees upon and overhanging
public streets, alleys, sidewalks and ways and places in Township
in order to prevent the branches of such trees from coming in contact
with the wires, cables and equipment of operator, in accordance with
applicable state law and any Salisbury Township ordinances, regulations
or standards.
B.
Franchisee, or its agents, including subcontractors, shall have the
authority to trim trees upon and overhanging public streets, alleys,
sidewalks and the public rights-of-way so as to prevent the branches
of such trees from coming in contact with the wires, cables or other
equipment of franchisee in accordance with applicable laws and regulations.
Franchisee shall reasonably compensate the Township or other property
owner for any damages caused by such tree trimming or removal. If
franchisee or its agents, including subcontractors, wish to cut down
and remove any tree or trees as may be necessary for the installation
and maintenance of its plant and/or equipment, it shall apply to Township
Council for permission and, if permission is granted, shall perform
such cutting and removal in accordance with accepted arboreal standards
and with the regulations of the Township. Franchisee shall notify
adjacent property owners at least seven days' prior to any tree
removal.
10.
Strand Maps. Operator shall provide to Salisbury Township for Salisbury
Township's exclusive use and shall maintain at its local offices
a complete set of as-built strand maps of Salisbury Township on which
will be shown those areas in which its facilities exist, the location
of all streets and the location of all residences. The maps shall
use GPS system points and shall be compatible with and usable by the
Township's system currently in use in Salisbury Township. Updated
maps shall be delivered to Salisbury Township within 60 days of any
change.
11.
Building Moves. In accordance with applicable laws, operator shall,
at its expense, upon the request of any person holding a building
or moving permit issued by Salisbury Township, temporarily raise or
lower its wires to permit the moving of the building(s). Operator
shall be given not less than 30 days' advance notice to arrange
for such temporary wire changes.
12.
"One Call" System. Operator shall comply with all applicable "one
call" system requirements.
13.
Disconnection and Relocation.
A.
Operator shall, at its sole cost and expense, protect, support, temporarily
disconnect, relocate in the same street or other public way and place
or remove from any street or any other public ways and places any
of its property as required by Township or its designee by reason
of traffic conditions, public safety, street vacation, street construction,
change or establishment of street grade, installation of sewers, drains,
water pipes or the construction of any public improvement or structure
by any authorized Salisbury Township department acting in a governmental
capacity or improvements being made by any authorized public agencies.
B.
In requiring operator to protect, support, temporarily disconnect,
relocate or remove any portion of its property, Salisbury Township
shall treat operator the same as, and require no more of operator
than, any other similarly situated utility.
14.
Emergency Removal of Plant. If at any time, in case of fire or disaster
in Township, it shall be necessary in the reasonable judgment of Township
to cut or move any of the wires, cable or equipment of the cable communication
system, all Salisbury Township departments, including, but not limited
to, the Township's public works and police departments and any
volunteer fire and emergency personnel, shall have the right to do
so without cost or liability; provided, however, that, wherever reasonably
possible, Township shall provide operator with advanced notice and
the ability to relocate wires, cable or other equipment.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Basic Broadcast Service. Operator shall make available a basic broadcast
service tier to which subscription may be required for access to any
other tier of service. Such basic tier shall, at a minimum, consist
of:
2.
Signal Transmission. Operator shall not scramble or otherwise encode, for the entire term of this franchise, any of the basic broadcast services described in Subsection 1 herein and in accordance with federal law, unless operator provided suitable means to descramble or decode said services.
3.
Continuity of Service. Except where there exists an emergency situation
necessitating a more expeditious procedure, operator shall use reasonable
efforts to interrupt service for the purpose of cable communications
system construction, routine repairing or testing the cable system
only during periods of minimum use. When necessary service interruptions
can be anticipated, operator shall notify subscribers in advance by
way of message on the community channel community bulletin board.
4.
Converter Box; Remote Controls. Upon availability when operator has
active two-way cable plant, operator shall make available for lease,
and when mandated by law shall make available for purchase, two-way
capable converter boxes to those subscribers purchasing interactive
services. Operator shall allow subscribers to purchase remote control
devices which are compatible with the converter installed by operator
and allow use of remotes at no additional charge from that of the
converter charge.
5.
Stereo TV Transmissions. All television signals within reason that
are transmitted to operator's headend in stereo shall be transmitted
in stereo to subscribers as is economically feasible.
6.
Community Programming.
A.
Upon completion of the upgrade of the cable communications system,
operator shall provide a public, educational and governmental ("PEG")
access channel for use by Salisbury Township to broadcast locally
produced PEG programming. This PEG access channel shall only be used
for noncommercial purposes.
B.
The operator will cablecast appropriate PEG programming provided
by Salisbury Township with 24 hours' notice on a designated channel
on the broadcast basic line up. Programming will be cablecast on the
operator's channel designated no later than 24 to 36 hours after
receiving fully prepared cablecast video tape. If the operator needs
the above channel range to be expanded, the operator will submit the
request and reasons, in writing, to Salisbury Township for consideration.
(When Salisbury Township provides locally produced PEG programming
to fill 80% of a channel, the operator will work with the Township
to provide a full-time channel.)
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Customer Service.
A.
Operator shall provide and maintain a toll-free twenty-four-hour
answering line which subscribers may call without incurring added
message units or toll charges so that prompt maintenance and service
is available. At the time of initial subscription, operator shall
give each new subscribing household a notice of billing practices
and dispute procedures, which notice shall include operator's
telephone number.
B.
Upon reasonable notice, operator shall expeditiously investigate
and resolve complaints regarding the quality of service, equipment
malfunctions and similar matters. Operator shall also maintain records
of all reported complaints and action taken to respond to such complaints
and shall make such records available to Salisbury Township, or its
designee, for inspection upon request, but shall also comply with
subscriber's privacy rights in accordance with federal law.
C.
Operator shall respond to all service calls within 24 hours and correct
malfunctions as promptly as possible. A serious malfunction will be
serviced as soon as possible after its discovery. For these purposes,
operator shall maintain a competent staff of employees sufficient
to provide adequate and prompt service to its subscribers.
D.
Operator shall comply with all customer service regulations of the
FCC (47 CFR Part 76) or such regulations as may be promulgated by
Salisbury Township.
2.
Consumer Complaint Procedures. Operator shall establish a procedure
for resolution of complaints by subscribers. Upon reasonable notice,
operator shall expeditiously investigate and resolve all complaints
regarding the quality of service, equipment malfunctions and similar
matters. In the event that a subscriber is aggrieved, Salisbury Township
shall be responsible for receiving and acting upon subscriber complaints
and/or inquiries, as follows:
A.
Upon request of Salisbury Township, operator shall, within 10 days
after receiving a complaint and/or inquiries, send a written report
to Salisbury Township with respect to any complaint. Such report shall
provide a full explanation of the investigation, finding and corrective
steps taken by operator.
B.
In the event that a subscriber's complaint is unresolved after following the procedures in Subsection 1 above, then, the subscriber shall be entitled to file his or her complaint with Salisbury Township, or its designee, and, in its capacity as the franchising authority, Salisbury Township shall oversee the complaint to its resolution. The subscriber shall thereafter meet jointly with Salisbury Township, or its designee, and a representative of operator within 30 days of the subscriber's filing of his or her complaint, in order to fully discuss and resolve such matter. Operator shall notify each new subscriber, at the time of initial subscription to cable service, of the procedures for reporting and resolving all such complaints.
C.
Notwithstanding the foregoing, if Salisbury Township, or its designee,
determines it to be in the public interest, Salisbury Township, or
its designee, may upon reasonable notice to operator investigate any
multiple complaints or disputes brought by subscribers arising from
the operations of the franchise.
D.
In the event that Salisbury Township, or its designee, documents
a pattern of multiple, unresolved complaints, Salisbury Township,
or its designee, shall suggest appropriate amendments to operator's
procedures for the resolution of complaints, which operator shall
not unreasonably refuse to incorporate into this Part 2A.
3.
Business Practice Standards. Operator shall provide Salisbury Township,
and all of its subscribers, with the following information:
A.
Notification of its billing practices.
B.
Notification of services, rates and charges.
C.
Equipment notification.
D.
Form of bills.
E.
Advance billing; issuance of bills.
F.
Billing due dates, delinquency, late charge and termination of service.
G.
Charges for downgrading of services.
H.
Billing disputes.
I.
Service interruptions.
4.
Subscriber's Antennas, Switching Devices. Operator shall not
remove any television antenna of any subscriber but shall, at operator's
actual cost, plus reasonable rate of return, offer an adequate switching
device to allow the subscriber to choose between cable communications
system services and noncable reception.
5.
Channel Transpositions. Whenever operator transposes any television
signal from the channel on which it was originally broadcast so that
it is received on a different channel on the receiving sets of subscribers,
operator shall, at least 30 days' prior to such transposition,
notify its subscribers, in writing, of such transposition and provide
them with a reference card indicating the fact of such transposition.
6.
Service Interruptions. In the event that operator's service
to any subscriber is completely interrupted for 24 or more consecutive
hours, it will grant such subscriber a pro rata credit or rebate,
on a daily basis, of that portion of the service charge during the
next consecutive billing cycle, or, at its option, apply such credit
to any outstanding balance then currently due. In the instance of
other individual subscriber service interruptions, credits shall be
applied as described above after due notice to operator from the subscriber.
7.
Protection of Subscriber Privacy.
A.
Operator shall respect the rights of privacy of every subscriber
and/or user of the cable communications system and shall not violate
such rights through the use of any device or signal associated with
the cable system and as hereafter provided.
B.
Operator shall comply with all privacy provisions contained in this
section and all other applicable federal and state laws including,
but not limited to, the provisions of § 631 of the Cable
Act, as amended.
C.
Operator shall be responsible for carrying out and enforcing the
cable communications system's privacy policy and shall at all
times maintain adequate physical, technical and administrative security
safeguards to ensure that personal subscriber information is handled
and protected strictly in accordance with this policy and all governing
laws and regulations.
D.
Operator shall notify all third parties who offer cable services
in conjunction with operator, or independently over the cable system,
of the subscriber privacy requirements contained in this section.
E.
Operator shall allow Salisbury Township to receive any requested
historical data on a complaint, if there is written authorization
by the subscriber complainant for any complaint being negotiated.
F.
Prior to the commencement of cable service to a new subscriber, and
annually thereafter to all cable communications system subscribers,
operator shall provide subscribers with a written document which clearly
and conspicuously explains operator's practices regarding the
collection, retention, use and dissemination of personal subscriber
information and describing operator's policy for the protection
of subscriber privacy.
G.
Neither operator, nor its designee, nor Salisbury Township, nor its
designee, shall tap, monitor, arrange for the tapping or monitoring,
or permit any person to tap or monitor any cable, line, signal, input
device or subscriber outlet or receiver for any purpose without the
prior written authorization of the affected subscriber or user, unless
directed by an appropriate law enforcement officer ; provided, however,
that, upon request by the franchising authority, operator may conduct
system-wide or individually addressed "sweeps" solely for the purpose
of verifying system integrity, checking for illegal taps, controlling
return-path transmission, billing for pay services or monitoring channel
usage in a manner not inconsistent with the Cable Act. Operator shall
report to the affected parties any instances of monitoring or tapping
of the cable communications system, or any part thereof, of which
it has knowledge, whether or not such activity has been authorized
by operator. Operator shall not record or retain any information transmitted
between a subscriber or user and any third party, except as required
for lawful business purposes.
H.
No poll or other upstream response of a subscriber or user shall
be conducted or obtained, unless:
(1)
The program of which the upstream response as a part contains
an explicit disclosure of the nature, purpose and prospective use
of the results of the poll or upstream response, including responses
to or orders to home shopping or similar programming services.
(2)
The program has an informational, entertainment or educational
function which is self-evident. Operator or its designee shall release
the results of upstream responses only in the aggregate and without
individual references.
I.
Except as permitted by § 631 of the Cable Act, as amended,
neither operator nor its designee, nor its employees, shall make available
to any third party, including Salisbury Township, information concerning
the viewing habits or subscription package decisions of any individual
subscriber. If a court authorizes such disclosure, operator shall
notify the subscriber not less than 14 calendar days' prior to
disclosure, unless such notification is otherwise prohibited by applicable
law or the court.
J.
Upon a request by a subscriber, operator shall make available for
inspection by a subscriber at a reasonable time and place all personal
subscriber information that operator maintains regarding said subscriber,
operator shall ensure that all information related to billing and
service requests is accurate and up to date and shall promptly correct
any errors upon discovery.
K.
Salisbury Township and operator shall periodically review this section
to determine that it effectively addresses appropriate concerns about
privacy.
L.
Operator shall prohibit use of its system in Salisbury Township for
neighborhood market targeting.
8.
Damaged or Lost Equipment. In the event that a subscriber is unable
to provide documentation to substantiate that a converter was stolen
or destroyed by fire, operator shall be entitled to assess a replacement
cost for a missing converter. In the event that a subscriber supplies
operator with a police or fire report which evidences that the loss
of a converter resulted from theft or fire, operator shall waive any
charges.
9.
Installations and Service Calls.
A.
Franchisee shall maintain a competent staff of trained employees
sufficient to provide adequate and prompt service to its subscribers.
Any franchisee employee or agent, including any subcontractor, who
personally visits any residential dwelling shall display a photo identification
badge. Any vehicle used for installation, operation or maintenance
activities by any franchisee employee or agent, including any subcontractor,
shall prominently display the franchisee's name and/or logo.
B.
Under normal operating conditions, standard installations will be
performed within seven business days after an order has been placed.
"Standard" installations are those aerial installations that are located
up to 125 feet from the existing distribution system.
C.
Excluding conditions beyond its control, franchisee shall begin working
on a service interruption promptly and in no event later than 24 hours
after the interruption becomes known and shall diligently pursue to
completion. Notice of a service interruption of a single subscriber
shall give rise to this obligation on behalf of franchisee. All other
service calls not affecting public health, safety or welfare shall
occur within a maximum of 48 hours after notice to franchisee or scheduled
at the convenience of the customer and shall be diligently pursued
to completion.
D.
Upon scheduling of appointments with the customer for installations,
service calls and other activities, franchisee shall provide the customer
with either a specific time or an "appointment window" of a maximum
of four hours during normal business hours. Franchisee may schedule
service calls and installation activities outside of normal business
hours for the express convenience of the customer. This "appointment
window" may be expanded to an "all day window," but only if desired
by the subscriber and that such "all day window" appointment would
afford subscriber sooner than seven day appointment.
E.
Franchisee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
If, at any time, an installer or technician is running late, an attempt
to contact the customer must be made prior to the time of the appointment.
If the appointment must be rescheduled, it must be done so at a time
that is convenient for the customer.
10.
Billing.
A.
Bills shall be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic service
tier, cable programming services tier and premium tier service charges,
if applicable, equipment charges and any installation or repair charges.
Bills shall state the billing period, including an effective due date,
the amount of current billing and any relevant credits or past due
balances.
B.
Franchisee shall not assess late fees for nonpayment of a current
bill until at least 30 days have elapsed since the mailing of the
bill by franchisee.
11.
Payment Center. Subject to the reasonable availability of a third-party
service center, operator shall maintain a full-time payment center
in a convenient location for the purpose of accepting payments and
distributing, receiving and exchanging converter boxes.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Rates and Charges.
A.
Any changes in prices will be in conformance with the federal law,
the rules and regulations of the FCC and any currently or hereinafter
applicable federal and/or state laws and regulations. A copy of such
changes to the price schedule shall be provided to the Township no
less than 30 days before the price changes go into effect.
B.
Salisbury Township acknowledges that, under the 1992 Cable Television
Consumer Protection and Competition Act, certain costs of public,
educational and governmental ("PEG") access and other franchise requirements
may be passed through to the subscriber in accordance with federal
law.
C.
Operator may require a deposit or refuse service for a bona fide
credit reason which relates to the subscriber's overdue or delinquent
account with operator for theft of service. Operator requires that
the account of any subscriber requesting work be current before such
work is performed.
D.
A written schedule of all rates shall be available upon request during
business hours at operator's business office. Nothing in this
Part 2A shall be construed to prohibit the reduction or waiver of
charges in conjunction with promotional campaigns for the purpose
of attracting or retaining subscribers.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Indemnification.
A.
By its acceptance of this franchise, operator and its successors
and assigns, including any trustee in bankruptcy, specifically agrees
that it shall defend and indemnify the Township, its officers, employees,
agents, boards, Board of Commissioners and commissions, acting in
their official Township capacity and hold them harmless at all times
during the term of this franchise, and any renewal thereafter, from
any and all manner of actions and causes of action, suits, debts,
amounts, judgments, damages, penalties or costs that may arise or
claims and demands whatsoever, whether in law or in equity, including,
but not limited to, any claims for injury and damage to persons or
property, both real and personal, copyright infringement, defamation,
antitrust, errors and omissions, theft, fire and all other damages
arising out of operator's exercise of this franchise, whether
or not any act or omission complained of is authorized, allowed or
prohibited from this franchise; such indemnification shall include,
but not be limited to, reasonable attorney's fees and costs,
due to the granting of the franchise to operator, or any activities
engaged in by operator, its officers, employees or agents, or caused
by or in any manner connected with the conduct or operation of its
activities under this Part 2A or with the construction, installation,
operation or maintenance of any structure, equipment, wire or cable
authorized to be installed pursuant to this Part 2A; excluding any
activities that are the result of negligence or deliberate acts or
omissions of the Township, its officers, employees, agents, boards
or commissions. Upon receipt of notice, in writing, from Salisbury
Township, operator shall, at its own expense, defend any action or
proceeding against Salisbury Township in which it is claimed that
damage including, but not limited to, personal injury or property
damage was caused by activities of operator, its employees and/or
agents, in the construction, installation, operation or maintenance
of its cable communications system.
B.
By its acceptance of this franchise, operator specifically agrees
that it shall pay all judgments or settlements due to damages and/or
penalties for which it is liable. In this connection, operator at
its sole expense will provide the defense of any claims brought against
the Township in connection with this franchise by selecting counsel
acceptable to operator in its sole discretion to defend the claim;
however, Township reserves the right at its own expense to select
and retain counsel of its choice to defend any claim against the Township
or assist in the defense of such claims, demands, actions, suits,
proceedings, damages or liability before operator shall be required
to undertake the defense and to indemnify the Township. Operator shall
have the right to defend, settle or compromise any claim or action
arising hereunder. Expense of investigation, counsel selected by operator
and the amount of any settlement of any claim or suit approved by
operator will be paid by operator and operator shall have the sole
authority to decide the appropriateness and the amount of any such
settlement.
2.
Insurance.
A.
By its acceptance of this franchise, grantee specifically agrees
that it will maintain, insurance throughout the term of this franchise
and any renewal period, naming Salisbury Township as an additional
insured, with an insurance company authorized to conduct business
in Pennsylvania with a rating by Best of not less than "A," and satisfactory
to Salisbury Township indemnifying Salisbury Township and insuring
operator from and against any and all claims for injury or damage
to persons or property, both real and personal, caused by the construction,
installation, operation, maintenance or removal of its cable system.
The amount of such insurance against liability for damage to property
shall be no less than $1,000,000 as to any one occurrence. The amount
of such insurance for liability for injury or death to any person
shall be no less than $1,000,000. The amount of such insurance for
excess liability shall be $5,000,000 in umbrella form. The policy
shall contain a provision that Salisbury Township will receive 30
days' written notice prior to any policy modification regarding
coverages or policy cancellation. Within 60 days after receipt by
the Township of said notice, and in no event later than 30 days'
prior to said cancellation, the grantee shall obtain and furnish to
the Township replacement insurance policies in a form reasonably acceptable
to the Township.
B.
Operator shall carry insurance, with Salisbury Township named as
an additional insured, against all claims arising out of the operation
of motor vehicles and general tort or contract liability in the amount
of $1,000,000. The policy will contain a provision that Salisbury
Township will receive 30 days' written notice prior to any policy
modification regarding coverages or policy cancellation. Within 60
days after receipt by the Township of said notice, and in no event
later than 30 days' prior to said cancellation, the grantee shall
obtain and furnish to the Township replacement insurance policies
in a form reasonably acceptable to the Township.
C.
All insurance coverage, including workers' compensation, shall
be maintained in the required statutory amount throughout the period
of this Part 2A and any renewal terms. All expenses incurred for said
insurance shall be at the sole expense of operator. The policy will
contain a provision that Salisbury Township will receive 30 days'
written notice prior to any policy modification regarding coverages
or policy cancellation.
D.
Each such liability insurance policy shall contain the following
endorsements: "It is hereby understood and agreed that this policy
must not be canceled nor the intention not to renew be stated until
60 days after receipt by the Township, by certified mail, of a written
notice of such intent to cancel or not to renew." Operator shall provide
Salisbury Township with certificate(s) of insurance for all policies
required herein on an annual basis.
3.
Franchise Fees.
A.
During the term of the franchise, the franchise fee payable to Salisbury
Township shall be 5% of total gross revenues or such higher amount
as may be allowed by law and adopted by the Township Commissioners
of Salisbury Township. The fee shall be paid quarterly, each such
quarterly payment installment due on or before 45 days following the
close of any calendar year quarter, i.e., May 15 for the first quarter,
August 15 for the second quarter, November 15 for the third quarter,
and February 15 for the fourth quarter. Remittance of the franchise
fee shall be accompanied by a list of services included in the total
gross revenues calculation and shall be verified by the chief financial
officer of operator under penalty of unsworn falsification to authorities.
B.
Salisbury Township may at its discretion, after holding a public
hearing, direct operator to pay a franchise fee exceeding 5% of operator's
total local gross revenues, not to exceed the percent allowed by federal
law or in the event that federal law is amended to authorize a higher
franchise fee.
C.
All franchise fee payments by operator to Salisbury Township, pursuant
to this Part 2A, shall be made payable to Salisbury Township and delivered
to the Township Manager.
D.
Consistent with the requirements of federal law, in the event operator
institutes a uniformed standard rate for services, regardless of a
municipality's franchise fee, Salisbury Township reserves the
right to authorize a higher franchise fee, at Salisbury Township's
sole discretion, after holding a public hearing and direct the operator
to pay a franchise fee exceeding the 5% of the operator's total
gross revenues.
4.
Reports.
A.
Quarterly Franchise Fee Report.
(1)
Franchisee shall accompany each quarterly franchise fee payment
with a written report containing an accurate statement of franchisee's
Gross Revenues received for the quarter in connection with the operation
of franchisee's cable system and a brief statement showing the
basis for computation of fees. The statement shall contain a line
item for every source of revenue received and the amount of revenue
received from each source. The report shall be verified by an authorized
representative of franchisee. In addition, operator shall also file
with Salisbury Township a financial balance sheet and statement of
ownership which shall be supplied upon request of Salisbury Township.
These requirements shall be subject to the regulations of Salisbury
Township.
(2)
As provided by any applicable regulations, every three months
operator shall notify Salisbury Township, on forms prescribed by Salisbury
Township, or complaints of subscribers received during the reporting
period and the manner in which the complaints have been met, including
the time required to make any necessary repairs or adjustments.
(3)
In addition, operator shall maintain for public inspection all
records required by the FCC and as specified in 47 CFR § 76.305
in the manner prescribed therein.
(4)
Salisbury Township shall have the right to audit the books and
records of operator no less than once annually, during the term of
the agreement. Such audit shall be conducted by an auditor selected
by Salisbury Township at the cost and expense of operator. Any underpayment
of the franchise fee for more than 90 days but less than one year
shall subject operator to a liquidated damage of 5% of the underpayment.
Any underpayment for more than one year shall subject operator to
liquidated damages of 10% of the underpayment. Any underpayment or
other irregularities revealed in any audit shall entitle Salisbury
Township to perform any additional audits Salisbury Township deem
to be necessary by an auditor selected by Salisbury Township at the
cost and expense of operator.
B.
Government Reports. Franchisee shall provide to the Township, upon written request, copies of any and all communications, reports, documents, pleadings and notifications of any kind which franchisee or any of its affiliated entities have submitted to any federal, state or local regulatory agencies, courts or other governmental bodies if such documents relate to franchisee's cable system within the Township. The term "affiliate" is defined in § 13-201, Definitions. Franchisee shall provide copies of such documents no later than 30 days after their request; if franchisee marks any such documents as confidential and provides the Township with an explanation of its confidentiality, the Township shall treat such documents as confidential so long as it is permitted to do so under applicable law.
C.
System Performance Test Reports. Upon written request, franchisee
shall submit to the Township its most recent system performance test
reports of its cable system in the Township as required by the FCC
and Section 3.5 of this Agreement. These reports shall detail the
results of the franchisee's system performance tests.
5.
Equal Employment Opportunity. Operator is an equal opportunity employer
and pursuant to 47 CFR 76.311[1] and other applicable regulations of the FCC must file
an equal employment opportunity plan with the FCC and otherwise comply
with the FCC regulations with respect to equal employment opportunities.
Operator has filed its current plan with the FCC and agrees to abide
by such plan.
[1]
Editor's Note: See 47 CFR 76.71 et seq.
6.
Revocation of Franchise. The franchise issued hereunder may be revoked
by Salisbury Township for any of the following reasons, subject to
the requirements of federal law and the FCC regulations promulgated
thereunder:
A.
For false misleading statements in, or material omissions from, the
application submitted.
C.
For repeated violations, as determined by Salisbury Township, of
commitments of the franchise.
D.
For repeated failure to maintain signal quality pursuant to the standards
provided for by the FCC and/or federal law.
E.
For any transfer or assignment of the franchise or control thereof
without consent of Salisbury Township.
F.
For fraud, negligence or neglect in the payment of the franchise
fee.
G.
For repeated failure to comply with any of the material terms and
conditions of the agreement.
7.
Determination of Breach.
A.
In the event that Salisbury Township has evidence that operator has
defaulted in the performance of any material provision(s) of this
Part 2A, except as excused by force majeure and prior to the institution
of any action under either § 273, Performance Bond,[3] or Subsection 6, Revocation of Franchise, Salisbury Township shall notify operator, in writing, by certified mail, of the provision or provisions which Salisbury Township believes may be in default and the details relating thereto. Operator shall have 30 days from the receipt of such notice to:
(1)
Respond to Salisbury Township, in writing, contesting Salisbury
Township's assertion of default and providing such information
of documentation as may be necessary to support operator's position;
or
(2)
Cure any such default (and provide written evidence to Salisbury
Township of the same) or in the event that, by nature of the default,
such default cannot be cured within such thirty-day period, promptly
to take steps to cure said default and diligently continue such efforts
until said default is cured.
[3]
Editor's Note: Said provisions were not included as part
of Ord. No. 12-2021-644.
B.
In the event that operator fails to respond to such notice of default
or to cure the default or to take reasonable steps to cure the default
within the required thirty-day period or to diligently continue such
efforts until the default is cured, Salisbury Township may schedule
a public hearing no sooner than 30 days after written notice, by certified
mail, to operator. Operator shall be provided reasonable opportunity
to be heard at such public hearing, including the right to present
evidence in its own behalf (both testimonial and documentary) to pose
questions to those conducting the hearing and to review documents
presented in support of a claimed material breach. Within 30 days
after said public hearing, Salisbury Township shall make a written
determination, based upon evidence introduced at the hearing, whether
or not operator is in default of any material provision of this Part
2A.
C.
If Salisbury Township determines that operator is in such default,
Salisbury Township may determine to pursue any of the following nonexclusive
remedies:
(1)
Seek specific performance of any provision of the agreement
which reasonably lends itself to such remedy as an alternative to
damages.
(2)
Exercise or foreclose on all or any appropriate part of the
security provided herein.
(3)
Commence an action at law for monetary damages.
(4)
Declare the agreement to be revoked subject to the provisions
herein and applicable law.
(5)
Any other remedy available to Salisbury Township.
8.
Transfer or Assignment.
A.
The agreement, or control thereof, shall not be transferred or assigned
without the prior written consent of Salisbury Township, which consent
shall not be unreasonably withheld or delayed, except to the parent
company of an operator or any other subsidiary or subsidiaries owned
by such parent company, provided further, however, that in such case
the operator and assignee give notice of such assignment. The consent
of Salisbury Township shall be given only after a hearing upon written
application therefor on forms prescribed by the Township. The application
for consent to an assignment or transfer shall be signed by operator
and by the proposed assignee or transferee or by their representatives,
evidence of whose authority shall be submitted with the application.
B.
Except as may otherwise be permitted by the Township, operator shall
not allow, whether by way of leasing, subletting, assigning, licensing
or by any other means whatsoever, any person or entity to use or occupy
the public rights-of-way within and under the jurisdiction of Salisbury
Township for the installation, maintenance, use and/or operation of
any facilities. The rights conferred under this Part 2A to operator
to use and occupy the public rights-of-way within and under the jurisdiction
of Salisbury Township are solely for the operator's own cable
communications system or cable system authorized under the franchise
agreement and for no other use or purpose.
C.
Nothing herein shall prevent or limit an operator from assigning
or pledging its rights or interest in the franchise as part of an
overall financing pledging all of the operator's assets, in which
case, however, the creditor shall be bound the creditor agrees to
abide by all terms and conditions set forth under this grant of a
franchise.
9.
Removal of System. Upon termination of the agreement or of any renewal
hereof by passage of time or otherwise, operator shall remove its
supporting structures, poles, transmissions and distribution systems
and other appurtenances from the streets, ways, lanes, alleys, parkways,
bridges, highways and other public and private places in, over, under
or along which they are installed and shall restore the areas to their
original condition, normal wear and tear excepted. If such removal
is not completed within six months of such termination, Salisbury
Township or any property owner may deem any property not removed as
having been abandoned and Salisbury Township may remove it at the
cost of operator.
[Ord. 12-2011-573, 12/22/2011; as amended by Ord. No. 12-2021-644, 12/9/2021]
1.
Force Majeure. If for any reason of force majeure operator is unable,
in whole or in part, to carry out its obligations hereunder, operator
shall not be deemed in violation or default during the continuance
of such inability. Unless further limited elsewhere in the franchise,
the term "force majeure" as used herein shall have the following meaning:
"Acts of God, acts of public enemies, orders of any kind of the government
of the United States of America or of the Commonwealth of Pennsylvania
or any of their departments, agencies, political subdivisions or officials
or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, volcanic activity,
storms, floods, washouts, droughts, explosions and partial or entire
failure of utilities.
2.
Notices. Every notice or payment to be served upon or made to Salisbury
Township shall be delivered or sent by certified mail (postage prepaid)
to:
|
Attn: Township Manager
|
|
Salisbury Township
|
|
2900 South Pike Avenue
|
|
Allentown, PA 18103
|
Or such other address as the Township of Salisbury may
specify, in writing, to operator. Every notice served upon operator
shall be delivered or sent by certified mail (postage prepaid) to
operator or such other address as operator may specify, in writing,
to Salisbury Township. The delivery shall be equivalent to direct
personal notice, direction or order and shall be deemed to have been
given at the time of receipt.
3.
Entire Agreement. This Part 2A contains the entire agreement between
the parties, supersedes all prior agreement or proposals except as
specifically incorporated herein and cannot be changed without written
amendment executed by both parties.
4.
Captions. The captions or sections throughout this Agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this Agreement. Such sections shall not affect the
meaning or interpretation of the Agreement.
5.
Applicability of Agreement. All of the provisions of this Agreement
shall bind the Township of Salisbury, operator, and their respective
successors and assigns. This Agreement is authorized by this Part
2A No. 12-2021-644 dated December 9, 2021, of the Board of Commissioners
of Salisbury Township.
[Ord. 04-2012-577, 4/26/2012, § 201]
The following terms used in this Part 2B shall have the following
meanings:
Those channels engineered at the headend of a cable system
for the provision of services generally available to residential subscribers
of the cable system, regardless of whether such services actually
are provided, including any channel designated for public, educational,
or governmental use.
Any person who, directly or indirectly, owns or controls,
is owned or controlled by, or is under common ownership or control
with, the franchisee.
Any service tier which includes the retransmission of local
television broadcast signals and public, educational and governmental
(PEG) channels required by this franchise.
Over-the-air transmission by a radio or television station.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel (as television channel is defined by the FCC by regulation).
RCN Telecom Services, LLC, 2124 Avenue C, Bethlehem, PA 18017,
and/or any person or group of persons:
(1) the one-way transmission to subscribers of (a) video
programming, or (b) other programming service, and (2) 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
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations.
A facility that serves subscribers without using any public
right-of-way.
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of this Act, except that such
facility shall be considered a cable system [other than for purposes
of § 621(c)] to the extent such facility is used in the
transmission of video programming directly to subscribers, unless
the extent of such use is solely to provide interactive on-demand
services.
An open video system that complies with § 653 of this
Title.
Any facilities of any electric utility used solely for operating
its electric utility systems.
The Communications Act of 1934, P.L. No. 416, Act of June 19, 1934, Ch. 652, 48 Stat. 1064, as amended, codified as Chapter 5 of Title 47 of the United States Code, 47 U.S.C. § 151 et seq.
Programming produced locally or otherwise for distribution
on any public, education or government access channel.
Cable system operators or other telecommunications service
providers whose actual or proposed service areas overlap.
Coaxial, fiber-optic or other cable that connects a home
or building to the subscriber network.
The United States Federal Communications Commission or successor
governmental entity thereto.
An initial authorization, or renewal thereof (including a
renewal of an authorization) which has been granted subject to § 626
of the Cable Communications Act, issued by a franchising authority,
whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a cable system within
the corporate limits of Salisbury Township, "the franchising authority."
Tax, fee, or assessment of any kind imposed by a franchising
authority or other governmental entity on a cable operator or cable
subscriber, or both, solely because of their status as such.
The term "franchise fee" does not include:
Any tax, fee, or assessment of general applicability (including
any such tax, fee, or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee, or assessment
which is unduly discriminatory against cable operators or cable subscribers).
In the case of any franchise in effect on the date of the enactment
of this Part 2B, payments which are required by the franchise to be
made by the cable operator during the term of such franchise for,
or in support of the use of, public, educational, or governmental
access facilities.
In the case of any franchise granted after such date of enactment,
capital costs which are required by the franchise to be incurred by
the cable operator for public, educational, or governmental access
facilities.
Requirements or charges incidental to the awarding or enforcing
of the franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages.
Any fee imposed under Title 17, United States Code.
For any twelve-month period, the fees paid by such person with
respect to any such cable service or other communications service
shall be 5% of such person's gross revenues derived in such period
from the provision of such service over the cable system.
Operator, licensed and authorized by the franchising authority
to occupy the public right-of-way for its operation of a cable communication
system or cable system within the municipal boundaries of Salisbury
Township.
Salisbury Township, Lehigh County, Pennsylvania.
The field strength of a television broadcast station computed
in accordance with regulations promulgated by the Commission.
Any and all revenue and compensation actually received by
the operator or its affiliated entities arising from the operation
of its cable system within the Township, including, but not limited
to, monthly fees received from subscribers for basic service, monthly
fees received from subscribers for any optional video service; pay
television and pay-per-view fees; FM service fees; premium service
fees, monthly fees received from subscribers for tier of service other
than basic cable service; installation, disconnection and converter
rentals and sales. Gross revenues shall also include nonsufficient
check fees, late fees and revenues from cable television guides. Gross
revenues shall not include advertising income, any bad debts, its
converter deposits, refunds to subscribers by grantee or receipts
from sales, use or franchise fees or taxes or any other tax or fee
that grantee collects on behalf of Township or any other taxing authority,
or income derived from the provision of any service not set forth
in this definition. Gross revenues shall also include any telecommunications
service and wireless service provided by grantee's cable system to
subscribers or any other type of comparable service provided by grantee's
cable system to subscribers only to the extent, however, that the
grantee is required to pay a franchise fee under applicable law to
Township for the provision of the said services. If competitors are
provided similar services within the Township, grantee shall not be
required to pay any greater rate to the Township than any competitor
pays the Township for the provision of said services. (In the event
that the FCC or an appropriate jurisdiction redefines, revises or
broadens the definition of cable services as currently defined in
the federal law, then the operator agrees that it shall include any
such broader service revenue as part of its gross annual revenues
payments to the Township of Salisbury including, but not limited to,
internet access.)
A service providing video programming to subscribers over
switched networks on an on-demand, point-to-point basis, but does
not include services providing video programming prescheduled by the
programming provider.
A person such as, but not limited to, a cable operator, a
multichannel multipoint distribution service, a direct broadcast satellite
service, or a television receive-only satellite program distributor,
who makes available for purchase, by subscribers or customers, multiple
channels of video programming.
Information that a cable operator makes available to all
subscribers generally.
Interior receptacle that connects a television set to the
cable communications system.
An individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
Video or audio signal carried over the cable communications
system.
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, but not limited to, 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 Township in the service area
which shall entitle the Township and grantee to the use thereof for
the purpose of installing, operating, repairing and maintaining the
cable system. "Public right-of-way" shall also mean any easement now
or hereafter held by the Township 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 Township
and grantee to the use thereof for the purposes of installing or transmitting
grantee's cable service over poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments and
other property as may be ordinarily necessary and pertinent to the
cable system.
A category of cable service or other services provided by
a cable operator and for which a separate rate is charged by the cable
operator.
Any state, or political subdivision, or agency thereof.
Person or entity who contracts with the franchisee for, and
lawfully receives, the video signals and cable services distributed
by the cable system.
Trunk and feeder signal distribution network over which video,
audio, text, digital and data signals are transmitted to or from subscriber.
Corporations, other than operator, in an unbroken horizontal
or vertical chain of corporations connected to operator, if, at the
time of the execution of the franchise agreement, each of the corporations
other than the last corporation in the unbroken chain or any parent
or subsidiary corporation or affiliated corporation own stock comprising
50% or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
Activated channels of a cable system, except those channels
whose use for the distribution of broadcast signals would conflict
with technical and safety regulations as determined by the FCC.
A person or entity who contracts with the franchisee for
and lawfully distributes or receives video signals and cable communications
system services distributed by the franchisee.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
[Ord. 04-2012-577, 4/26/2012, §§ 211 —
215]
1.
Grant of Franchise. Pursuant to the authority of the First Class
Township Code of the Commonwealth of Pennsylvania and the Communications
Act of 1934, as amended, Salisbury Township hereby grants a nonexclusive
franchise to operator, authorizing and permitting operator to construct,
operate and maintain, in Salisbury Township's public rights-of-way,
a cable communications system within the corporate limits of Salisbury
Township. Subject to the terms and conditions herein, Salisbury Township
hereby grants to operator the right to construct, upgrade, install,
operate, extend and maintain a cable communications system, including
such lines, cables, fiber optics, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary and appropriate to the operation
of the cable communications system in, under, over, along, across
and upon the streets, lanes, avenues, alleys, sidewalks, brides, highways
and other public places and rights-of-way under the jurisdiction of
Salisbury Township with the municipal boundaries and subsequent additions
thereto, including property over which Salisbury Township has a sufficient
easement or right-of-way, for the purpose of reception, transmission,
amplification, origination, distribution or redistribution of video,
audio, text, data and other electronic signals and impulses.
2.
Term, Nonexclusivity. The term of this nonexclusive agreement shall
be for a period of 10 years and shall commence once a franchise is
granted by the Township Board of Commissioners and shall terminate
at midnight, 10 years thereafter. The period of the franchise granted
will be noted in each franchise and renewal franchise ordinance.
3.
Pole and Conduit Attachment Rights. Permission is hereby granted
to operator to attach or otherwise affix cables, wire or optical fibers
comprising the cable communications system to the existing poles and
conduits on and under public streets and ways; provided, operator
secures the permission and consent of the public utility companies
to affix the cables and/or wires to their pole and conduit facilities.
By virtue of this franchise, Salisbury Township grants operator equal
standing with power and telephone utilities in the matter of placement
of facilities on public rights-of-ways.
4.
Police and Regulatory Powers. Operator's rights under this franchise
agreement are subject to the police powers of Salisbury Township to
adopt and enforce general laws necessary for the safety and welfare
of the public.
5.
Waiver of Rights. No course of dealing between operator and Salisbury
Township, nor any delay on the part of Salisbury Township in exercising
any rights hereunder, shall operate as a waiver of any such rights
of Salisbury Township or acquiescence in the actions of operator in
contravention of such right, except to the extent expressly waived
by Salisbury Township or expressly provided for in the Part; provided,
however, Salisbury Township shall provide operator with notice and
an opportunity to cure any such violation within a reasonable period
of time after actual knowledge of said violation.
[Ord. 04-2012-577, 4/26/2012, §§ 221 —
225]
1.
Area to Be Served.
A.
Operator shall provide cable service to all persons requesting cable
services within Salisbury Township and to any new service areas covered
by the operator.
B.
Service shall be provided to every dwelling occupied by a person
requesting cable service; provided, that operator is able to obtain
from the property owners any necessary easements and/or permits in
accordance with § 621(a)(2) of the Federal Cable Communications
Act of 1984, as amended. Operator shall extend the cable system into
all areas within Salisbury Township where there are a minimum of 35
dwelling units or lots approved and authorized for dwelling units
per aerial strand mile of cable and 60 dwelling units or lots approved
and authorized for dwelling units per underground mile of cable, calculated
from the end of the nearest trunk line. Operator shall use its best
efforts to commence said extensions within six months of notification
to operator by Salisbury Township that an area has met the minimum
density standard set forth herein. Operator's obligation hereunder
shall be subject to the timely performance of walk-out, make ready
and location of underground utilities by the telephone and electric
utility companies.
C.
Installation costs shall conform with the 1992 Cable Consumer Protection
Act as amended and regulations thereunder. Any dwelling unit within
150 feet aerial or 125 feet underground of the cable plant shall be
entitled to a standard installation rate.
D.
Provided, operator has at least 45 days' prior notice concerning
the opening of residential subdivision trenching, or of the installation
of conduit for the location of utilities, it shall install its cable
in such trenching or conduits or may seek permission to utilize alternative
trenching or conduits within a comparable time frame. If a substantial
quantity of cable is required for a large subdivision and said quantity
is not in stock, operator shall be allowed additional time for said
installation. The developer, or its designee, shall exercise reasonable
efforts to give timely notice of trenching and underground construction
to the operators that have been granted a franchise, to have access
to run their cable wire underground and comply with the Township's
Planning Code requirements of notification.
2.
Subscriber Network. Franchisee shall design, construct and maintain
a cable system covering the Township that utilizes fiber optic backbone
connections from headend to hubs, hubs to hubs, and hubs to nodes.
This cable system shall be built for digital television standards.
3.
Subscriber Network Cable Drops.
A.
Franchisee shall, at no charge to the Township, provide the following
services to all present and future public facilities in franchisee's
service area including, but not limited to, the Township municipal
building, police stations, fire companies, ambulance services, public
works buildings, municipal authorities, recreational facilities, community
centers, senior citizens centers, all public and private school buildings
and public libraries.
B.
Upon the request of the Township, franchisee shall provide one cable
drop, outlet and basic and expanded basic services (or equivalent)
package to each building identified in Exhibit "13-2B-A." No charge
shall be made for standard installation or service which is within
a one-hundred-twenty-five-foot distance of the cable system and franchisee
may charge for installation and service for more than one drop in
each building.
4.
Rebuild (Construction) Schedule.
A.
No poles, cables, equipment or wires for the construction, maintenance,
expansion, renovations, rebuild and operation of a cable system shall
be installed, or the installation thereof commenced, on any existing
pole, or otherwise, within the Township until the proposed location,
specifications and manner of installation of such cables, equipment
and wires shall have been set forth upon a plot or map showing the
existing poles, streets, right-of-ways or easements within the Township
where such installations are proposed, with related schedule, and
submitted in writing, by any person desiring to operate a cable system,
to the Board of Commissioners and approved by the Board of Commissioners,
in writing.
B.
Where telephone and electric utilities are both underground, operator
shall place its cables underground.
5.
Parental Control Capability.
A.
Upon request, and at no separate, additional charge, operator shall
provide subscribers with the capability to control the reception of
any video or audio channel on the cable communications system with
the use of a set top converter or other suitable equipment.
B.
Salisbury Township acknowledges that the parental control capability
may be part of a converter box and operator may charge subscriber
for use of said box.
[Ord. 04-2012-577, 4/26/2012, §§ 231 —
244]
1.
Cable System. Operator shall upgrade and maintain a cable communications
system built for carriage of digital television signals.
2.
System Specifications. Franchisee shall design, construct and maintain
a cable system covering the Township that utilizes fiber optic backbone
connections from headend to hubs, hubs to hubs, and hubs to nodes.
This cable system shall be built for digital television standards.
3.
State-of-the-Art.
A.
Franchisee and the Township acknowledge that the technology of cable
systems is an evolving field. Franchisee's cable system in the Township
shall be capable of offering cable services that are comparable to
other cable systems owned or managed by franchisee or its affiliated
entities in the Commonwealth of Pennsylvania ("comparable systems")
pursuant to the terms of this section. The Township may send a written
notice to franchisee, not to exceed one request every two years, requesting
information on cable services offered by such comparable systems.
Within 60 days of receiving such request, franchisee shall provide
the Township with information on any cable services that are offered
in any of the comparable systems but not being offered in the Township,
the percentage of total subscribers in such comparable systems to
whom such cable services are available, and when franchisee anticipates
making such cable services available in the Township.
B.
If the identified cable services are being offered by franchisee
and/or its affiliated entities to at least 25% of the total subscribers
in the comparable systems, then the Township may require that franchisee
make such cable services available in the Township. Should the Township
determine that franchisee shall commence provision of such cable services,
then the Township and franchisee shall enter into good faith discussions
to negotiate a schedule for deployment of such cable services. The
discussions shall take into consideration the benefits from the provision
of such cable services, the cost of implementing them in the Township,
and the impact, if any, on subscriber rates.
4.
Technical Requirement.
A.
Franchisee shall operate, maintain, construct and extend the cable
system so as to provide high quality signals and reliable delivery
of one-way and two-way cable services for all programming services
throughout all parts of the Township where franchisee's cable system
exists. The cable system shall meet or exceed any and all technical
performance standards of the FCC, the National Electrical Safety Code,
the National Electric Code and any other applicable federal laws and
the law, ordinances and construction standards of the Commonwealth
of Pennsylvania and the Township.
B.
The cable system shall provide signals that are reasonably free from
co-channel interference. Should the Township provide written notice
to franchisee that it has received a historical record of complaints
of co-channel interference from subscribers, then franchisee shall
take reasonable and necessary actions to remove such co-channel interference.
C.
Stand-by power at the headend(s) shall be provided for a minimum
of eight hours in the event of an outage. The power supplies serving
the nodes and distribution shall be capable of providing power for
not less than six hours in the event of an electrical outage. Stand-by
power must activate automatically upon the failure of commercial utility
power.
5.
System Maintenance.
A.
In installing, operating and maintaining its equipment, cable and
wires, operator shall avoid damage and injury to trees, structures
and improvements in and along the routes authorized by Salisbury Township,
except as may otherwise be approved by Salisbury Township, if required
for the proper installation, operation and maintenance of such equipment,
cable and wires.
B.
The construction, maintenance and operation of the cable communications
system under this Part 2B shall be done in accordance with all applicable
laws.
C.
Operations and maintenance personnel shall be thoroughly trained
in the use of all safety equipment and the safe operation of vehicles
and equipment. All areas of the cable communications system shall
be routinely inspected and maintained so that conditions that could
develop into safety hazards for the public and/or operations and maintenance
personnel can be corrected before a hazardous condition arises. Operator
shall install and maintain its wire, cable, fixtures and other equipment
in such a manner as shall not interfere with any installations of
Salisbury Township or any public utility serving Salisbury Township.
D.
All structures and all lines, equipment and connections in, over,
under and upon streets, sidewalks, alleys and public and private ways
and places of Salisbury Township, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair.
E.
The signal of any broadcast television or radio station carried on
the cable communications system shall be carried without material
degradation in quality at all subscribing locations within the limits
imposed by the technical specifications of the cable system and as
required by the FCC. The cable system shall be operated and maintained
in compliance with the technical standards as set forth in the FCC's
rules and regulations applicable to cable television systems.
F.
Upon written notice from Salisbury Township, operator shall remedy
a general deficiency with respect to the technical standards described
herein within three months of receipt of notice and a safety deficiency
within 48 hours of receipt of notice and shall notify Salisbury Township
when the deficiency has been corrected.
6.
System Monitoring. Within 60 days of completing any construction,
and otherwise on an annual basis, franchisee shall conduct signal
monitoring and system performance tests in accordance with the regulations
of the FCC. Such capability shall enable franchisee to monitor the
signal quality of all channels delivered on the cable system.
7.
Permits. Franchisee shall apply to the Township for all required permits and shall not undertake any activities in the public rights-of-way subject to a permit without receipt of such permit, issuance of which shall not be unreasonably withheld by the Township. Franchisee shall pay a franchise fee pursuant to § 13-218, Subsection 3, and not be required to pay any permit fees.
8.
Repairs and Restoration.
A.
Whenever franchisee or any agent, including any subcontractor, takes
up or disturbs any pavement, sidewalk or other improvement of any
public or private way or place within Township, the same shall be
replaced and the surface restored in as good condition as before the
disturbance within 10 business days of the completion of the disturbance.
Upon failure of franchisee to comply within the time specified, the
Township may cause proper restoration and repairs to be made and the
expense of such work shall be paid by franchisee upon demand by the
Township along with any monetary fines applied by the Township.
B.
Whenever franchisee or any agent, including any subcontractor, shall
install, operate or maintain equipment, cable, or wires, it shall
avoid damage and injury to property, including structures, improvements
and trees in and along the routes authorized by the Township, except
as may be approved by the Township if required for the proper installation,
operation and maintenance of such equipment, cable, or wires. Franchisee
shall promptly repair and restore any private property that is damaged
as a result of construction, installation, repair or maintenance of
the cable system within 10 business days.
C.
Franchisee's operating, construction, repair and maintenance personnel,
including all agents and subcontractors, shall be trained in the use
of all equipment and the safe operation of vehicles. Franchisee's
operating, construction, repair and maintenance personnel shall follow
all safety procedures required by all applicable federal, state and
local laws and regulations. All areas of the cable system shall be
routinely inspected and maintained so that conditions that could develop
into safety hazards for the public and/or operating and maintenance
personnel may be corrected before they become a hazard. Franchisee
shall install and maintain its wires, cables, fixtures, and other
equipment in such a manner as shall not interfere with any installations
of the Township or any public utility serving the Township.
D.
Whenever franchisee or any agent, including any subcontractor, shall
disturb any pavement, sidewalk or other public property in order to
perform any underground activity, it shall utilize the Pennsylvania
One Call System prior to any such disturbance. It shall notify the
Pennsylvania One Call System no less than three and no more than 10
working days in advance of any such disturbance and adhere to any
additional requirements which the commonwealth may establish in the
future. Franchisee shall also adhere to all requirements of the Pennsylvania
Underground Utility Line Protection Act.
E.
All structures and all lines, equipment and connections in, over,
under, and upon streets, sidewalks, alleys, and public and private
ways and places of the Township, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair. Franchisee shall not keep or maintain
disconnected or loose cables, lines, or wires on utility poles or
anywhere else in the public rights-of-way.
9.
Tree Trimming.
A.
Operator shall have authority to trim trees upon and overhanging
public streets, alleys, sidewalks and ways and places in Township
in order to prevent the branches of such trees from coming in contact
with the wires, cables and equipment of operator, in accordance with
applicable state law and any Salisbury Township ordinances, regulations
or standards.
B.
Franchisee, or its agents, including subcontractors, shall have the
authority to trim trees upon and overhanging public streets, alleys,
sidewalks and the public rights-of-way so as to prevent the branches
of such trees from coming in contact with the wires, cables or other
equipment of franchisee in accordance with applicable laws and regulations.
Franchisee shall reasonably compensate the Township or other property
owner for any damages caused by such tree trimming or removal. If
franchisee or its agents, including subcontractors, wish to cut down
and remove any tree or trees as may be necessary for the installation
and maintenance of its plant and/or equipment, it shall apply to Township
Council for permission and, if permission is granted, shall perform
such cutting and removal in accordance with accepted arboreal standards
and with the regulations of the Township. Franchisee shall notify
adjacent property owners at least seven days prior to any tree removal.
10.
Strand Maps. Operator shall provide to Salisbury Township for Salisbury
Township's exclusive use and shall maintain at its local offices a
complete set of as-built strand maps of Salisbury Township on which
will be shown those areas in which its facilities exist, the location
of all streets and the location of all residences. The maps shall
use GPS system points and shall be compatible with and usable by the
Township's system currently in use in Salisbury Township. Updated
maps shall be delivered to Salisbury Township within 60 days of any
change.
11.
Building Moves. In accordance with applicable laws, operator shall,
at its expense, upon the request of any person holding a building
or moving permit issued by Salisbury Township, temporarily raise or
lower its wires to permit the moving of the building(s). Operator
shall be given not less than 30 days' advance notice to arrange for
such temporary wire changes.
12.
"One Call" System. Operator shall comply with all applicable "one
call" system requirements.
13.
Disconnection and Relocation.
A.
Operator shall, at its sole cost and expense, protect, support, temporarily
disconnect, relocate in the same street or other public way and place
or remove from any street or any other public ways and places any
of its property as required by Township or its designee by reason
of traffic conditions, public safety, street vacation, street construction,
change or establishment of street grade, installation of sewers, drains,
water pipes or the construction of any public improvement or structure
by any authorized Salisbury Township department acting in a governmental
capacity or improvements being made by any authorized public agencies.
B.
In requiring operator to protect, support, temporarily disconnect,
relocate or remove any portion of its property Salisbury Township
shall treat operator the same as, and require no more of operator
than, any other similarly situated utility.
14.
Emergency Removal of Plant. If at any time, in case of fire or disaster
in Township, it shall be necessary in the reasonable judgment of Township
to cut or move any of the wires, cable or equipment of the cable communication
system, all Salisbury Township departments, including, but not limited
to, the Township's public works and police departments and any volunteer
fire and emergency personnel shall have the right to do so without
cost or liability; provided, however, that wherever reasonably possible,
Township shall provide operator with advanced notice and the ability
to relocate wires, cable or other equipment.
[Ord. 04-2012-577, 4/26/2012, §§ 251 —
256]
1.
Basic Broadcast Service. Operator shall make available a basic broadcast
service tier to which subscription may be required for access to any
other tier of service. Such basic tier shall, at a minimum, consist
of:
2.
Signal Transmission. Operator shall not scramble or otherwise encode, for the entire term of this franchise, any of the basic broadcast services described in Subsection 1 herein and in accordance with federal law, unless operator provided suitable means to descramble or decode said services.
3.
Continuity of Service. Except where there exists an emergency situation
necessitating a more expeditious procedure, operator shall use reasonable
efforts to interrupt service for the purpose of cable communications
system construction, routine repairing or testing the cable system
only during periods of minimum use. When necessary, service interruptions
can be anticipated, operator shall notify subscribers in advance by
way of message on the community channel community bulletin board.
4.
Converter Box, Remote Controls. Upon availability when operator has
active two-way cable plant, operator shall make available for lease,
and when mandated by law shall make available for purchase, two-way
capable converter boxes to those subscribers purchasing interactive
services. Operator shall allow subscribers to purchase remote control
devices which are compatible with the converter installed by operator
and allow use of remotes at no additional charge from that of the
converter charge.
5.
Stereo TV Transmissions. All television signals within reason that
are transmitted to operator's headend in stereo shall be transmitted
in stereo to subscribers as is economically feasible.
6.
Community Programming.
A.
Upon completion of the upgrade of the cable communications system,
operator shall provide a public, educational and governmental ("PEG")
access channel for use by Salisbury Township to broadcast locally
produced PEG programming. This PEG access channel shall only be used
for noncommercial purposes.
B.
The operator will cablecast appropriate PEG programming provided
by Salisbury Township with 24 hours' notice on a designated channel
on the broadcast basic line up. Programming will be cablecast on the
operator's channel designated no later than 24 to 36 hours after receiving
fully prepared cablecast video tape. If the operator needs the above
channel range to be expanded, the operator will submit the request
and reasons, in writing, to Salisbury Township for consideration.
(When Salisbury Township provides locally produced PEG programming
to fill 80% of a channel the operator will work with the Township
to provide a full time channel.)
[Ord. 04-2012-577, 4/26/2012, §§ 261 —
271]
1.
Customer Service.
A.
Operator shall provide and maintain a toll-fee 24-hour answering
line which subscribers may call without incurring added message units
or toll charges so that prompt maintenance and service is available.
At the time of initial subscription, operator shall give each new
subscribing household a notice of billing practices and dispute procedures,
which notice shall include operator's telephone number.
B.
Upon reasonable notice, operator shall expeditiously investigate
and resolve complaints regarding the quality of service, equipment
malfunctions and similar matters. Operator shall also maintain records
of all reported complaints and action taken to respond to such complaints
and shall make such records available to Salisbury Township, or its
designee, for inspection upon request, but shall also comply with
subscriber's privacy rights in accordance with federal law.
C.
Operator shall respond to all service calls within 24 hours and correct
malfunctions as promptly as possible. A serious malfunction will be
serviced as soon as possible after its discovery. For these purposes,
operator shall maintain a competent staff of employees sufficient
to provide adequate and prompt service to its subscribers.
D.
Operator shall comply with all customer service regulations of the
FCC (47 CFR 76) or such regulations as may be promulgated by Salisbury
Township.
2.
Consumer Complaint Procedures. Operator shall establish a procedure
for resolution of complaints by subscribers. Upon reasonable notice,
operator shall expeditiously investigate and resolve all complaints
regarding the quality of service, equipment malfunctions and similar
matters. In the event that a subscriber is aggrieved, Salisbury Township
shall be responsible for receiving and acting upon subscriber complaints
and/or inquiries, as follows:
A.
Upon request of Salisbury Township, operator shall, within 10 days
after receiving a complaint and/or inquiries, send a written report
to Salisbury Township with respect to any complaint. Such report shall
provide a full explanation of the investigation, finding and corrective
steps taken by operator.
B.
In the event that a subscriber's complaint is unresolved after following the procedures in Subsection 2A above, then, the subscriber shall be entitled to file his or her complaint with Salisbury Township, or its designee, and in its capacity as the franchising authority, Salisbury Township shall oversee the complaint to its resolution. The subscriber shall thereafter meet jointly with Salisbury Township, or its designee, and a representative of operator within 30 days of the subscriber's filing of his or her complaint, in order to fully discuss and resolve such matter. Operator shall notify each new subscriber, at the time of initial subscription to cable service, of the procedures for reporting and resolving all such complaints.
C.
Notwithstanding the foregoing, if Salisbury Township, or its designee,
determines it to be in the public interest, Salisbury Township, or
its designee, may upon reasonable notice to operator investigate any
multiple complaints or disputes brought by subscribers arising from
the operations of the franchise.
D.
In the event that Salisbury Township, or its designee, documents
a pattern of multiple, unresolved complaints Salisbury Township, or
its designee, shall suggest appropriate amendments to operator's procedures
for the resolution of complaints, which operator shall not unreasonably
refuse to incorporate into this Part 2B.
3.
Business Practice Standards. Operator shall provide Salisbury Township,
and all of its subscribers, with the following information:
A.
Notification of its billing practices.
B.
Notification of services, rates and charges.
C.
Equipment notification.
D.
Form of bills.
E.
Advance billing, issuance of bills.
F.
Billing due dates, delinquency, late charge and termination of service.
G.
Charges for downgrading of services.
H.
Billing disputes.
I.
Service interruptions.
4.
Subscriber's Antennas, Switching Devices. Operator shall not remove
any television antenna of any subscriber but shall, at operator's
actual cost, plus reasonable rate of return, offer an adequate switching
device to allow the subscriber to choose between cable communications
system services and noncable reception.
5.
Channel Transpositions. Whenever operator transposes any television
signal from the channel on which it was originally broadcast so that
it is received on a different channel on the receiving sets of subscribers,
operator shall, at least 30 days prior to such transposition, notify
its subscribers, in writing, of such transposition and provide them
with a reference card indicating the fact of such transposition.
6.
Service Interruptions. In the event that operator's service to any
subscriber is completely interrupted for 24 or more consecutive hours,
it will grant such subscriber a pro rata credit or rebate, on a daily
basis, of that portion of the service charge during the next consecutive
billing cycle, or at its option, apply such credit to any outstanding
balance then currently due. In the instance of other individual subscriber
service interruptions, credits shall be applied as described above
after due notice to operator from the subscriber.
7.
Protection of Subscriber Privacy.
A.
Operator shall respect the rights of privacy of every subscriber
and/or user of the cable communications system and shall not violate
such rights through the use of any device or signal associated with
the cable system and as hereafter provided.
B.
Operator shall comply with all privacy provisions contained in this
section and all other applicable federal and state laws including,
but not limited to, the provisions of § 631 of the Cable
Act, as amended.
C.
Operator shall be responsible for carrying out and enforcing the
cable communications system's privacy policy and shall at all times
maintain adequate physical, technical and administrative security
safeguards to ensure that personal subscriber information is handled
and protected strictly in accordance with this policy and all governing
laws and regulations.
D.
Operator shall notify all third parties who offer cable services
in conjunction with operator, or independently over the cable system,
of the subscriber privacy requirements contained in this section.
E.
Operator shall allow Salisbury Township to receive any requested
historical data on a complaint, if there is written authorization
by the subscriber complainant for any complaint being negotiated.
F.
Prior to the commencement of cable service to a new subscriber, and
annually thereafter to all cable communications system subscribers,
operator shall provide subscribers with a written document which clearly
and conspicuously explains operator's practices regarding the collection,
retention, use and dissemination of personal subscriber information
and describing operator's policy for the protection of subscriber
privacy.
G.
Neither operator, nor its designee, nor Salisbury Township, nor its
designee shall tap, monitor, arrange for the tapping or monitoring,
or permit any person to tap or monitor any cable, line, signal, input
device or subscriber outlet or receiver for any purpose without the
prior written authorization of the affected subscriber or user, unless
directed by an appropriate law enforcement officer; provided, however,
that upon request by the franchising authority, operator may conduct
system-wide or individually addressed "sweeps" solely for the purpose
of verifying system integrity, checking for illegal taps, controlling
return-path transmission, billing for pay services or monitoring channel
usage in a manner not inconsistent with the Cable Act. Operator shall
report to the affected parties any instances of monitoring or tapping
of the cable communications system, or any part thereof, of which
it has knowledge, whether or not such activity has been authorized
by operator. Operator shall not record or retain any information transmitted
between a subscriber or user and any third party, except as required
for lawful business purposes.
H.
No poll or other upstream response of a subscriber or user shall
be conducted or obtained, unless:
(1)
The program of which the upstream response as a part contains
an explicit disclosure of the nature, purpose and prospective use
of the results of the poll or upstream response, including responses
to or orders to home shopping or similar programming services.
(2)
The program has an informational, entertainment or educational
function which is self-evident. Operator or its designee shall release
the results of upstream responses only in the aggregate and without
individual references.
I.
Except as permitted by § 631 of the Cable Act, as amended,
neither operator nor its designee, nor its employees shall make available
to any third party, including Salisbury Township, information concerning
the viewing habits or subscription package decisions of any individual
subscriber. If a court authorizes such disclosure, operator shall
notify the subscriber not less than 14 calendar days prior to disclosure,
unless such notification is otherwise prohibited by applicable law
or the court.
J.
Upon a request by a subscriber, operator shall make available for
inspection by a subscriber at a reasonable time and place all personal
subscriber information that operator maintains regarding said subscriber.
Operator shall ensure that all information related to billing and
service requests is accurate and up to date and shall promptly correct
any errors upon discovery.
K.
Salisbury Township and operator shall periodically review this section
to determine that it effectively addresses appropriate concerns about
privacy.
L.
Operator shall prohibit use of its system in Salisbury Township for
neighborhood market targeting.
8.
Damaged or Lost Equipment. In the event that a subscriber is unable
to provide documentation to substantiate that a converter was stolen
or destroyed by fire, operator shall be entitled to assess a replacement
cost for a missing converter. In the event that a subscriber supplies
operator with a police or fire report which evidences that the loss
of a converter resulted from theft or fire, operator shall waive any
charges.
9.
Installations and Service Calls.
A.
Franchisee shall maintain a competent staff of trained employees
sufficient to provide adequate and prompt service to its subscribers.
Any franchisee employee or agent, including any subcontractor, who
personally visits any residential dwelling shall display a photo identification
badge. Any vehicle used for installation, operation or maintenance
activities by any franchisee employee or agent, including any subcontractor,
shall prominently display the franchisee's name and/or logo.
B.
Under normal operating conditions, standard installations will be
performed within seven business days after an order has been placed.
"Standard" installations are those aerial installations that are located
up to 125 feet from the existing distribution system.
C.
Excluding conditions beyond its control, franchisee shall begin working
on a service interruption promptly and in no event later than 24 hours
after the interruption becomes known and shall diligently pursue to
completion. Notice of a service interruption of a single subscriber
shall give rise to this obligation on behalf of franchisee. All other
service calls not affecting public health, safety or welfare shall
occur within a maximum of 48 hours after notice to franchisee or scheduled
at the convenience of the customer and shall be diligently pursued
to completion.
D.
Upon scheduling of appointments with the customer for installations,
service calls and other activities, franchisee shall provide the customer
with either a specific time or an "appointment window" of a maximum
of four hours during normal business hours. Franchisee may schedule
service calls and installation activities outside of normal business
hours for the express convenience of the customer. This "appointment
window" may be expanded to an "all day window," but only if desired
by the subscriber and that such "all day window" appointment would
afford subscriber sooner than seven day appointment.
E.
Franchisee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
If, at any time, an installer or technician is running late, an attempt
to contact the customer must be made prior to the time of the appointment.
If the appointment must be rescheduled, it must be done so at a time
that is convenient for the customer.
10.
Billing.
A.
Bills shall be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic service
tier, cable programming services tier and premium tier service charges,
if applicable, equipment charges and any installation or repair charges.
Bills shall state the billing period, including an effective due date,
the amount of current billing and any relevant credits or past due
balances.
B.
Franchisee shall not assess late fees for non-payment of a current
bill until at least 30 days have elapsed since the mailing of the
bill by franchisee.
11.
Payment Center. Subject to the reasonable availability of a third
party service center, operator shall maintain a full time payment
center in a convenient location for the purpose of accepting payments
and distributing, receiving and exchanging converter boxes.
[Ord. 04-2012-577, 4/26/2012, § 272]
1.
Rates and Charges.
A.
Any changes in prices will be in conformance with the federal law,
the rules and regulations of the FCC and any currently or hereinafter
applicable federal and/or state laws and regulations. A copy of such
changes to the price schedule shall be provided to the Township no
less than 30 days before the price changes go into effect.
B.
Salisbury Township acknowledges that under the 1992 Cable Television
Consumer Protection and Competition Act, certain costs of public,
educational and governmental ("PEG") access and other franchise requirements
may be passed through to the subscriber in accordance with federal
law.
C.
Operator may require a deposit or refuse service for a bona fide
credit reason which relates to the subscriber's overdue or delinquent
account with operator for theft of service. Operator requires that
the account of any subscriber requesting work be current before such
work is performed.
D.
A written schedule of all rates shall be available upon request during
business hours at operator's business office. Nothing in this Part
2B shall be construed to prohibit the reduction or waiver of charges
in conjunction with promotional campaigns for the purpose of attracting
or retaining subscribers.
[Ord. 04-2012-577, 4/26/2012, §§ 273 —
282]
1.
Indemnification.
A.
By its acceptance of this franchise, operator and its successors
and assigns, including any trustee in bankruptcy, specifically agrees
that it shall defend and indemnify the Township, its officers, employees,
agents, boards, Board of Commissioners and commissions, acting in
their official Township capacity and hold them harmless at all times
during the term of this franchise, and any renewal thereafter, from
any and all manner of actions and causes of action, suits, debts,
amounts, judgments, damages, penalties or costs that may arise or
claims and demands whatsoever, whether in law or in equity including,
but not limited to, any claims for injury and damage to persons or
property, both real and personal, copyright infringement, defamation,
antitrust, errors and omissions, theft, fire and all other damages
arising out of operator's exercise of this franchise, whether or not
any act or omission complained of is authorized, allowed or prohibited
from this franchise; such indemnification shall include, but not be
limited to, reasonable attorney's fees and costs, due to the granting
of the franchise to operator, or any activities engaged in by operator,
its officers, employees or agents, or caused by or in any manner connected
with the conduct or operation of its activities under this Part 2B
or with the construction, installation, operation or maintenance of
any structure, equipment, wire or cable authorized to be installed
pursuant to this Part 2B; excluding any activities that are the result
of negligence or deliberate acts or omissions of the Township, its
officers, employees, agents, boards or commissions. Upon receipt of
notice, in writing, from Salisbury Township, operator shall, at its
own expense, defend any action or proceeding against Salisbury Township
in which it is claimed that damage including, but not limited to,
personal injury or property damage was caused by activities of operator,
its employees and/or agents, in the construction, installation, operation
or maintenance of its cable communications system.
B.
By its acceptance of this franchise, operator specifically agrees
that it shall pay all judgments or settlements due to damages and/or
penalties for which it is liable. In this connection, operator at
its sole expense will provide the defense of any claims brought against
the Township in connection with this franchise by selecting counsel
acceptable to operator in its sole discretion to defend the claim;
however, Township reserves the right at its own expense to select
and retain counsel of its choice to defend any claim against the Township
or assist in the defense of such claims, demands, actions, suits,
proceedings, damages or liability before operator shall be required
to undertake the defense and to indemnify the Township. Operator shall
have the right to defend, settle or compromise any claim or action
arising hereunder. Expense of investigation, counsel selected by operator
and the amount of any settlement of any claim or suit approved by
operator will be paid by operator and operator shall have the sole
authority to decide the appropriateness and the amount of any such
settlement.
2.
Insurance.
A.
By its acceptance of this franchise, grantee specifically agrees
that it will maintain, insurance throughout the term of this franchise
and any renewal period, naming Salisbury Township as an additional
insured, with an insurance company authorized to conduct business
in Pennsylvania with a rating by Best of not less than "A," and satisfactory
to Salisbury Township indemnifying Salisbury Township and insuring
operator from and against any and all claims for injury or damage
to persons or property, both real and personal, caused by the construction,
installation, operation, maintenance or removal of its cable system.
The amount of such insurance against liability for damage to property
shall be no less than $1,000,000 as to any one occurrence. The amount
of such insurance for liability for injury or death to any person
shall be no less than $1,000,000. The amount of such insurance for
excess liability shall be $5,000,000 in umbrella form. The policy
shall contain a provision that Salisbury Township will receive 30
days' written notice prior to any policy modification regarding coverages
or policy cancellation. Within 60 days after receipt by the Township
of said notice, and in no event later than 30 days prior to said cancellation,
the grantee shall obtain and furnish to the Township replacement insurance
policies in a form reasonably acceptable to the Township.
B.
Operator shall carry insurance, with Salisbury Township named as
an additional insured, against all claims arising out of the operation
of motor vehicles and general tort or contract liability in the amount
of $1,000,000. The policy will contain a provision that Salisbury
Township will receive 30 days' written notice prior to any policy
modification regarding coverages or policy cancellation. Within 60
days after receipt by the Township of said notice, and in no event
later than 30 days prior to said cancellation, the grantee shall obtain
and furnish to the Township replacement insurance policies in a form
reasonably acceptable to the Township.
C.
All insurance coverage, including workers' compensation, shall be
maintained in the required statutory amount throughout the period
of this Part 2B and any renewal terms. All expenses incurred for said
insurance shall be at the sole expense of operator. The policy will
contain a provision that Salisbury Township will receive 30 days'
written notice prior to any policy modification regarding coverages
or policy cancellation.
D.
Each such liability insurance policy shall contain the following
endorsements: "It is hereby understood and agreed that this policy
must not be canceled nor the intention not to renew be stated until
60 days after receipt by the Township, by certified mail, of a written
notice of such intent to cancel or not to renew." Operator shall provide
Salisbury Township with certificate(s) of insurance for all policies
required herein on an annual basis.
3.
Franchise Fees.
A.
During the term of the franchise, the franchise fee payable to Salisbury
Township shall be 5% of total gross revenues or such higher amount
as may be allowed by law and adopted by the Township Commissioners
of Salisbury Township. The fee shall be paid quarterly, each such
quarterly payment installment due on or before 45 days following the
close of any calendar year quarter, i.e., May 15 for the first quarter,
August 15 for the second quarter, November 15 for the third quarter,
and February 15 for the fourth quarter. Remittance of the franchise
fee shall be accompanied by a list of services included in the total
gross revenues calculation and shall be verified by the chief financial
officer of operator under penalty of unsworn falsification to authorities.
B.
Salisbury Township may at its discretion, after holding a public
hearing, direct operator to pay a franchise fee exceeding 5% of operator's
total local gross revenues, not to exceed the percent allowed by federal
law or in the event that federal law is amended to authorize a higher
franchise fee.
C.
All franchise fee payments by operator to Salisbury Township, pursuant
to this Part 2B, shall be made payable to Salisbury Township and delivered
to the Township Manager.
D.
Consistent with the requirements of federal law, in the event operator
institutes a uniformed standard rate for services, regardless of a
municipality's franchise fee, Salisbury Township reserves the right
to authorize a higher franchise fee, at Salisbury Township's sole
discretion, after holding a public hearing and direct the operator
to pay a franchise fee exceeding the 5% of the operator's total gross
revenues.
4.
Performance Bond.
A.
A new operator shall submit and shall maintain for at least three
consecutive years of the agreement a performance bond for the benefit
of Salisbury Township with a surety company authorized to transact
business in Pennsylvania and satisfactory to Salisbury Township to
guarantee the following terms:
(1)
The satisfactory completion of the installation and operation
of the cable system in the time schedule provided herein and otherwise.
(2)
The satisfactory restoration of pavements, sidewalks and other
improvements.
(3)
The indemnity of Salisbury Township.
(4)
The satisfactory removal or other disposition of the cable system.
B.
During the period of rebuild construction, this bond shall be in
the amount of $300,000.
C.
Upon completion of rebuild construction and following a reasonable
period of satisfactory operation, as determined by Salisbury Township
and operator, the amount of the bond shall be reduced to $100,000.
D.
This requirement may be waived once the operator has fulfilled at
least three consecutive years of business experience in the Township
satisfactory to the Township. The amount of the said bond shall not
be reduced or canceled or materially changed from the provisions of
this subsection herein without providing Salisbury Township with 30
days' prior written notice of reducing or canceling the bond and without
Salisbury Township's express written permission. If a franchise is
sold to a company without three consecutive business years of experience
with the Township of Salisbury, the new owner must furnish this bond
at least for a three-year period.
5.
Reports.
A.
Quarterly Franchise Fee Report.
(1)
Franchisee shall accompany each quarterly franchise fee payment
with a written report containing an accurate statement of franchisee's
gross revenues received for the quarter in connection with the operation
of franchisee's cable system and a brief statement showing the basis
for computation of fees. The statement shall contain a line item for
every source of revenue received and the amount of revenue received
from each source. The report shall be verified by an authorized representative
of franchisee. In addition, operator shall also file with Salisbury
Township a financial balance sheet and statement of ownership which
shall be supplied upon request of Salisbury Township. These requirements
shall be subject to the regulations of Salisbury Township.
(2)
As provided by any applicable regulations, every three months
operator shall notify Salisbury Township, on forms prescribed by Salisbury
Township, or complaints of subscribers received during the reporting
period and the manner in which the complaints have been met, including
the time required to make any necessary repairs or adjustments.
(3)
In addition, operator shall maintain for public inspection all
records required by the FCC and as specified in 47 CFR 76.305 in the
manner prescribed therein.
(4)
Salisbury Township shall have the right to audit the books and
records of operator no less than once annually, during the term of
the agreement. Such audit shall be conducted by an auditor selected
by Salisbury Township at the cost and expense of operator. Any underpayment
of the franchise fee for more than 90 days but less than one year
shall subject operator to a liquidated damage of 5% of the underpayment.
Any underpayment for more than one year shall subject operator to
liquidated damages of 10% of the underpayment. Any underpayment or
other irregularities revealed in any audit shall entitle Salisbury
Township to perform any additional audits Salisbury Township deem
to be necessary by an auditor selected by Salisbury Township at the
cost and expense of operator.
B.
Government Reports. Franchisee shall provide to the Township, upon written request, copies of any and all communications, reports, documents, pleadings and notifications of any kind which franchisee or any of its affiliated entities have submitted to any federal, state or local regulatory agencies, courts or other governmental bodies if such documents relate to franchisee's cable system within the Township. The term "affiliated entity" is defined in § 13-211, "Definitions." Franchisee shall provide copies of such documents no later than 30 days after their request if franchisee marks any such documents as confidential and provides the Township with an explanation of its confidentiality, the Township shall treat such documents as confidential so long as it is permitted to do so under applicable law.
C.
System Performance Test Reports. Upon written request, franchisee
shall submit to the Township it most recent system performance test
reports of its cable system in the Township as required by the FCC
and § 3.5 of this Agreement. These reports shall detail
the results of the franchisee's system performance tests.
6.
Equal Employment Opportunity. Operator is an equal opportunity employer
and pursuant to 47 CFR 76.311 and other applicable regulations of
the FCC must file an equal employment opportunity plan with the FCC
and otherwise comply with the FCC regulations with respect to equal
employment opportunities. Operator has filed its current plan with
the FCC and agrees to abide by such plan.
7.
Revocation of Franchise. The franchise issued hereunder may be revoked
by Salisbury Township for any of the following reasons, subject to
the requirements of federal law and the FCC regulations promulgated
thereunder:
A.
For false misleading statements in, or material omissions from, the
application submitted.
C.
For repeated violations, as determined by Salisbury Township, of
commitments of the franchise.
D.
For repeated failure to maintain signal quality pursuant to the standards
provided for by the FCC and/or federal law.
E.
For any transfer or assignment of the franchise or control thereof
without consent of Salisbury Township.
F.
For fraud, negligence or neglect in the payment of the franchise
fee.
G.
For repeated failure to comply with any of the material terms and
conditions of the agreement.
8.
Determination of Breach.
A.
In the event that Salisbury Township has evidence that operator has defaulted in the performance of any material provision(s) of this Part 2B, except as excused by force majeure and prior to the institution of any action under either Subsection 4, "Performance Bond," or Subsection 7, "Revocation of Franchise," Salisbury Township shall notify operator, in writing, by certified mail, of the provision or provisions which Salisbury Township believes may be in default and the details relating thereto. Operator shall have 30 days from the receipt of such notice to:
(1)
Respond to Salisbury Township, in writing, contesting Salisbury
Township's assertion of default and providing such information of
documentation as may be necessary to support operator's position.
(2)
Cure any such default (and provide written evidence to Salisbury
Township of the same) or in the event that by nature of the default,
such default cannot be cured within such thirty-day period, promptly
to take steps to cure said default and diligently continue such efforts
until said default is cured.
B.
In the event that operator fails to respond to such notice of default
or to cure the default or to take reasonable steps to cure the default
within the required thirty-day period or to diligently continue such
efforts until the default is cured, Salisbury Township may schedule
a public hearing no sooner than 30 days after written notice, by certified
mail, to operator. Operator shall be provided reasonable opportunity
to be heard at such public hearing, including the right to present
evidence in its own behalf (both testimonial and documentary) to pose
questions to those conducting the hearing and to review documents
presented in support of a claimed material breach. Within 30 days
after said public hearing, Salisbury Township shall make a written
determination, based upon evidence introduced at the hearing, whether
or not operator is in default of any material provision of this Part
2B.
C.
If Salisbury Township determines that operator is in such default,
Salisbury Township may determine to pursue any of the following nonexclusive
remedies:
(1)
Seek specific performance of any provision of the agreement
which reasonably lends itself to such remedy as an alternative to
damages.
(2)
Exercise or foreclose on all or any appropriate part of the
security provided herein.
(3)
Commence an action at law for monetary damages.
(4)
Declare the agreement to be revoked subject to the provisions
herein and applicable law.
(5)
Any other remedy available to Salisbury Township.
9.
Transfer or Assignment.
A.
The agreement, or control thereof, shall not be transferred or assigned
without the prior written consent of Salisbury Township, which consent
shall not be unreasonably withheld or delayed, except to the parent
company of an operator or any other subsidiary or subsidiaries owned
by such parent company, provided further, however, that in such case
the operator and assignee give notice of such assignment. The consent
of Salisbury Township shall be given only after a hearing upon written
application therefor on forms prescribed by the Township. The application
for consent to an assignment or transfer shall be signed by operator
and by the proposed assignee or transferee or by their representatives,
evidence of whose authority shall be submitted with the application.
B.
Except as may otherwise be permitted by the Township, operator shall
not allow, whether by way of leasing, subletting, assigning, licensing
or by any other means whatsoever, any person or entity to use or occupy
the public rights-of-way within and under the jurisdiction of Salisbury
Township for the installation, maintenance, use and/or operation of
any facilities. The rights conferred under this Part 2B to operator
to use and occupy the public rights-of-way within and under the jurisdiction
of Salisbury Township are solely for the operator's own cable communications
system or cable system authorized under the franchise agreement and
for no other use or purpose.
C.
Nothing herein shall prevent or limit an operator from assigning
or pledging its rights or interest in the franchise as part of an
overall financing pledging all of the operators assets, in which case,
however, the creditor shall be bound the creditor agrees to abide
by all terms and conditions set forth under this grant of a franchise.
10.
Removal of System. Upon termination of the agreement or of any renewal
hereof by passage of time or otherwise, Operator shall remove its
supporting structures, poles, transmissions and distribution systems
and other appurtenances from the streets, ways, lanes, alleys, parkways,
bridges, highways and other public and private places in, over, under
or along which they are installed and shall restore the areas to their
original condition, normal wear and tear excepted. If such removal
is not completed within six months of such termination, Salisbury
Township or any property owner may deem any property not removed as
having been abandoned and Salisbury Township may remove it at the
cost of operator.
[Ord. 04-2012-577, 4/26/2012, §§ 283 —
287]
1.
Force Majeure. If for any reason of force majeure, operator is unable,
in whole or in part, to carry out its obligations hereunder, operator
shall not be deemed in violation or default during the continuance
of such inability. Unless further limited elsewhere in the franchise,
the term "force majeure" as used herein shall have the following meaning:
"Acts of God, acts of public enemies, orders of any kind of the government
of the United States of America or of the Commonwealth of Pennsylvania
or any of their departments, agencies, political subdivisions or officials
or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, volcanic activity,
storms, floods, washouts, droughts, explosions and partial or entire
failure of utilities."
2.
Notices. Every notice or payment to be served upon or made to Salisbury
Township shall be delivered or sent by certified mail (postage prepaid)
to:
|
Attn: Township Manager
Salisbury Township
2900 South Pike Avenue
Allentown, PA 18103
|
|
Or such other address as the Township of Salisbury may specify,
in writing, to operator. Every notice served upon operator shall be
delivered or sent by certified mail (postage prepaid) to operator
or such other address as operator may specify, in writing, to Salisbury
Township. The delivery shall be equivalent to direct personal notice,
direction or order and shall be deemed to have been given at the time
of receipt.
|
3.
Entire Agreement. This Part 2B contains the entire agreement between
the parties, supersedes all prior agreement or proposals except as
specifically incorporated herein and cannot be changed without written
amendment executed by both parties.
4.
Captions. The captions or sections throughout this Agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this Agreement. Such sections shall not affect the
meaning or interpretation of the Agreement.
5.
Applicability of Agreement. All of the provisions of this Agreement
shall bind the Township of Salisbury, operator, and their respective
successors and assigns. This Agreement is authorized by this Ord.
04-2012-577 dated April 26, 2012, of the Board of Commissioners of
Salisbury Township.
