Township of Warrington, PA Cable Television

Grant. In the event that Township shall grant to the grantee a nonexclusive, revocable franchise to construct, operate and maintain a cable communications system within the Township, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as regulated by the provisions of this chapter and the franchise. The franchise shall include by reference those provisions of the grantee's "application for franchise" that are finally negotiated and accepted by the Township and grantee.

Event of conflict. The franchise shall be granted under the terms and conditions contained herein, consistent with applicable statutory requirements. In the event of conflict between the terms and conditions of this chapter, the franchise, or the terms and conditions on which the Township can grant a franchise, the statutory requirements shall control.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

General Township ordinances. Any franchise granted by the Township is hereby made subject to the general ordinance provisions now in effect and hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the Township regarding permits, fees to be paid or manner of construction.

Franchise area. The franchise area shall be the entire Township, or portions thereof, for which a franchise is granted.

Use of public rights-of-way. For the purpose of operating and maintaining a cable communications system in the Township, the grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the Township such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable communications systems; provided, however, that grantee complies with all design, construction, safety, and performance provisions contained in this chapter, the franchise agreement and other applicable local ordinances.

Use of Township facilities. In the event that a grantee chooses to utilize Township-owned conduit or other facilities for any portion of its cable communications system, the consideration for the use of Township conduit or other facilities shall be at charges to be agreed upon between the parties.

Use of grantee facilities. No poles or pedestals shall be erected by the grantee without prior approval of the Township with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the grantee shall be a vested right and such poles shall be removed or modified by the grantee at its own expense whenever the Township determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. The Township shall have the right, during the life of the franchise, to install and maintain upon the poles owned by the grantee, any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the grantee. The Township shall reimburse the grantee for any make-ready costs. The use of grantee's poles shall be at a fair and reasonable rate.

Franchise required. No cable communications system shall be allowed to occupy or use the streets of the Township or be allowed to operate without a franchise.

Term of franchise. The term of any franchise granted pursuant to this chapter shall be stated in the franchise.

Franchise nonexclusive. Any franchise granted pursuant to this chapter shall be nonexclusive. The Township specifically reserves the right to (1) grant at any time such additional franchises for a cable communication system as it deems appropriate, and/or (2) build, operate, and own such cable communication system or systems as it deems appropriate. Subject to applicable law and regulation, any additional cable communications system franchises granted by the Township shall, to the extent practicable seek to create a level regulatory playing field and shall contain similar terms and conditions, including without limitation, provisions of public benefit with similar cost, taking into account the size and population of the franchised areas. A grantee is required to indemnify the Township and to hold the Township harmless from all claims against it by third parties arising out of its compliance with this provision to the extent that such claims are not barred by Section 635A of the Cable Television Consumer Protection and Competition Act of 1992 (Limitation of Franchise Authority Liability), or by any other provision of law.

Time is of the essence of this chapter. Whenever the agreement shall set forth any time for an act to be performed by or on behalf of the grantee or the Township, such time shall be deemed of the essence and any failure of the grantee or the Township to perform within the time allotted shall be sufficient grounds for the other party to invoke an appropriate penalty including possible revocation of the franchise, subject to force majeure.

Law governs. In any controversy or dispute under this chapter, the law of the Commonwealth of Pennsylvania shall apply.

Transfer of ownership or control.

Transfer of franchise. Any franchise granted hereunder shall not be sold, transferred, leased, assigned or disposed of, including, but not limited to, transfer by force or voluntary sale, merger, consolidation, receivership or other means, nor shall the control of the grantee be changed, without the prior consent of the Township. The Township reserves the right to impose certain conditions on the transferee as a condition of transfer approval to ensure that the franchisee is able to meet ordinance and franchise requirements and existing operating practices.

Transfer threshold. The grantee shall promptly notify the Township of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A transfer of ownership requiring approval shall arise upon the disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 25% or more at one time of the ownership or controlling interest in the system, or 30% cumulatively over the term of the franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. Except that no consent shall be required for any sale, transfer or assignment of ownership or control to an entity under common control with grantee; provided, that prior to such transfer, grantee provides to the Township verifiable information to establish that such transferee under common control has the financial, legal and technical ability to fully perform all obligations of the franchise.

Township approval. Every change, transfer or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the Township shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the Township may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the grantee shall provide the Township with all required information relevant to said inquiry. Failure to provide all information requested by the Township as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control.

Assumption of control. The Township agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the Township that it or its designees satisfactory to the Township will take control and operate the cable television system. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding 18 months, unless extended by the Township at its discretion and during said period of time it shall have the right to petition for transfer of the franchise to another grantee. If the Township finds that such transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant are satisfactory, the Township will transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the Township to such transfer shall not be unreasonably withheld.

No waiver of Township property rights. The consent or approval of the Township to any transfer of the grantee shall not constitute a waiver or release of the rights of the Township in and to the streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this chapter and the franchise.

Transfer time periods. The Township will not approve any transfer or assignment of the franchise prior to completion of construction of the proposed system unless appropriate guarantees which are acceptable to the Township are made by the transferee.

Disclosure of purchase price. The Township reserves the right to require the grantee and transferee to disclose the purchase price of any transfer or assignment of the cable system.

Signatory requirement. Any approval by the Township of transfer of ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the franchise.

Time frame for Township review. The Township shall have 120 days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with FCC regulations and by the Township. If the Township fails to render a final decision on the request within 120 days, such request shall be deemed granted unless the requesting party and the Township agree to an extension of time.

Franchise renewal. Upon completion of the term of any franchise granted under this chapter, the Township may grant or deny renewal of the franchise of the grantee in accordance with the provisions of the Cable Act. The grantee shall own the cable communication system, but shall have no property right in the public rights-of-way upon the completion of the franchise term, including any renewals and extensions thereof.

Police powers.

Police powers. In accepting the franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the Township to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the Township pursuant to such power.

Conflicts. Any conflict between the provisions of this chapter or the franchise and any other present or future lawful exercise of the Township's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to grantee or cable communications systems which contains provisions inconsistent with this chapter or the franchise shall prevail only if, upon such exercise, the Township finds an emergency exists constituting a danger to health, safety, property or general welfare and such exercise is mandated by law.

Franchise fees.

Because the Township finds that:

The streets of the county, commonwealth and Township to be used by the grantee in the operation of its system within the boundaries of the franchise area are valuable public properties acquired and maintained by the county, commonwealth and Township at great expense to its taxpayers.

The grant to the grantee to the said streets is a valuable property right without which the grantee would be required to invest substantial capital in right-of-way costs and acquisitions.

The administration of this chapter and the franchise imposes upon the Township additional regulatory responsibility and expense.

A grantee of any franchise hereunder shall pay to the Township a franchise fee in an amount as designated in the franchise, but in no event less than 5% of the gross annual revenues, or the maximum amount permitted under applicable federal, commonwealth or local law, if such maximum is greater than 5%. The annual franchise fee payable shall be in addition to any other fee and shall commence as of the effective date of the franchise. Annually, the Township shall be furnished a statement of said payment by a certified public accountant, reflecting the total amounts of annual gross revenues, a breakdown by type of revenue, and the above charges and computations for the period covered by the payment.

Franchise fee in addition to other tax or payment. The Township believes that payment of the franchise fee made by grantee to the Township shall not be considered in the nature of a tax, but shall be in addition to any and all taxes which are now or may be lawfully required hereafter to be paid by any federal, commonwealth or local law. This payment shall be in addition to any other tax or payment owed to the governments or other taxing jurisdiction by the grantee.

Acceptance by the Township. No acceptance of any payment by the Township shall be construed as a release or as an accord and satisfaction of any claim the Township may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.

Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate of the Township primary depository bank during the period that such unpaid amount is owed.

Payments to be made quarterly. The franchise fee and any other cost or damage assessed against the grantee shall be payable quarterly to the Township of Warrington. The grantee shall file a complete and accurate statement verified by a financial officer of the grantee, of all gross revenues within the franchise area and the number of subscribers per service during the period for which said quarterly payment is made, and said payment shall be made to the Township no later than 45 days following the expiration of each calendar quarter ending March 31, June 30 and September 30, and no later than the 90 days after the calendar quarter ending December 31.

The Township's right of inspection. The Township shall have the right to inspect the grantee's income records and the right to audit and to recompute any amounts determined to be payable under this chapter. Audits shall be at the expense of the Township unless the audit reveals an underpayment of more than 5% in the amount of the franchise fee due to the Township, in which event the cost of the audit shall be borne by the grantee. Any additional amount due the Township as a result of the audit shall be paid within 30 days following written notice to the grantee by the Township which notice shall include a copy of the audit report.

Forfeiture or revocation.

Grounds for revocation. The Township reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this chapter and the franchise grant:

If the grantee shall default in the performance of any of the material obligations under this chapter, the franchise, or under such documents, contracts and other terms and provisions entered into by and between the Township and the grantee.

If the grantee shall fail to provide or maintain in full force and affect the liability and indemnification coverage or the performance bond as required herein.

If the grantee, after all established regulatory and appellate procedures have been exhausted, shall violate any orders or rulings of any regulatory body having jurisdiction over the grantee relative to this chapter or the franchise.

If the grantee practices any fraud or deceit upon the Township or cable subscribers.

The grantee's construction schedule is delayed 180 days, beyond the schedule contained in the franchise or beyond any extended date set by the Township.

(f)

The grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.

(g)

Failure to restore service after 96 consecutive hours of interrupted service substantially throughout the franchise area, except when approval of such interruption is obtained from the Township.

(h)

Material misrepresentation of fact in the application for or negotiation of the franchise or any extension or renewal thereof.

(i)

If the grantee ceases to provide a substantial portion of ongoing cable services for any reason within the control of the grantee over the cable communications system.

Effect of circumstances beyond control of grantee. The grantee shall not be declared at fault or be subject to any sanction under any provision of this chapter in any case, in which performance of any such provision is prevented for reasons beyond the grantee's control. A fault shall not be deemed to be beyond the grantee's control if committed by a corporation or other business entity in which the grantee holds a controlling interest whether held directly or indirectly.

Effect of pending litigation. Pending litigation or any appeal to any regulatory body or court having jurisdiction over the grantee shall not excuse the grantee from the performance of its obligations under this chapter or the franchise. Failure of the grantee to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section.

Procedure prior to revocation.

The Township shall make written demand that the grantee comply with any such requirement, limitation, term condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the grantee continues for a period of 30 days following such written demand, the Township shall place its request for termination of the franchise upon a regular Board of Supervisors meeting agenda. The Township shall cause to be served upon such grantee at least seven days prior to the date of such Board of Supervisors meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published by the Township Manager or his designee, at least once, seven days before such meeting in a newspaper of general circulation within the Township.

The Board of Supervisors shall hear any persons interested therein, and shall determine in its discretion, whether or not any failure, refusal or neglect by the grantee was with just cause.

If such failure, refusal or neglect by the grantee was with just cause, as reasonably determined by the Township, the Board of Supervisors shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

If the Board of Supervisors shall determine such failure, refusal, or neglect by the grantee was without just cause, then the Board of Supervisors shall, by resolution, declare that the franchise of the grantee shall be terminated unless there is compliance by the grantee within 90 days.

Disposition of facilities. In the event a franchise expires and is not renewed or extended, is revoked or otherwise terminated, the Township may in its sole discretion, do any of the following:

Purchase the system under the procedures set forth in Subsection T of this section.

Effect a transfer of ownership of the system to another party.

Order the removal of all or a portion of the system facilities as required by the Township within a reasonable period of time as determined by the Township or require the original grantee to maintain and operate its system for a period of six months or until such further time as is mutually agreed upon.

Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good a condition or better as that prevailing prior to the grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The Township shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. The liability, indemnity, insurance and performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this subsection, this chapter and the franchise.

Restoration by Township; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsections C and D and/or O(6) above, or any other work required by Township law or ordinance within the time as may be established and to the satisfaction of the Township, the Township may cause such work to be done and the grantee shall reimburse the Township the cost thereof within 30 days after receipt of an itemized list of such costs or the Township may recover such costs through the performance bond provided by grantee. The Township shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

Extended operation. Upon either the expiration and nonrenewal or revocation of a franchise, the Township may require the grantee to continue to operate the system for a period of six months from the date of such expiration or revocation, or until such time as is mutually agreed upon. The grantee shall continue to operate the cable communications system under the terms and conditions of this chapter and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at the time. The Township shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

Receivership and foreclosure.

Termination by insolvency. The franchise granted hereunder shall, at the option of the Township, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said 120 days shall have remedied all defaults under the franchise or have commenced expeditiously and in good faith to do so in the reasonable opinion of the Board of Supervisors; and

Such receivers, or trustees shall, within said 120 days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise herein granted.

Termination by judicial action. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the grantee, or any part thereof, including or excluding the franchise, the Township may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee granted hereunder shall cease and terminate 30 days after service of such notice, unless:

The Township shall have approved the transfer of the franchise, in the manner this chapter provides; and

Such successful bidder shall have covenanted and agreed with the Township to assume and be bound by all the terms and conditions of the franchise.

Equal opportunity policy. Equal opportunity employment shall be afforded by all operators of cable television systems to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, age, national origin, sex or physical handicap. Grantee shall comply with all equal opportunity provisions enacted by federal, commonwealth and local authorities, as well as all such provisions contained in this chapter and the franchise.

Notices. All notices from grantee to the Township pursuant to this chapter and the franchise shall be to the Township Manager or his/her designee. Grantee shall maintain with the Township throughout the term of the franchise, an address for service of notices by mail. Grantee shall also maintain a locally accessible office as specified in this chapter and the franchise, and telephone number for the conduct of matters related to the franchise during normal business hours. The grantee shall be required to advise the Township of such address(es) and telephone numbers and any changes thereof.

Failure of Township to enforce this chapter, no waiver of the terms thereof. The grantee shall not be excused from complying with any of the terms and conditions of this chapter or the franchise by any failure of the Township upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.

Rights reserved to the grantor.

Right to purchase of the system by the Township upon termination or expiration of the franchise.

Right to purchase. In the event the grantee (1) forfeits and the Township terminates the franchise for cause, pursuant to provisions of this chapter and the franchise, or (2) the franchise is not renewed at/or following the normal expiration of the franchise term, the Township shall have the right, directly or as an intermediary, to purchase the franchised cable communications system or effect the ownership of the system to another person. Any such acquisition or transfer shall be as specified in the Cable Act. The Township shall notify the grantee in writing within 30 days following nonrenewal or termination of its intent to acquire the system on its behalf or effectuate the ownership of the system to another person. Purchase price shall be based upon the value of the system determined pursuant to this section.

Arbitration. In the event the Township and grantee are unable to agree upon the value of the cable communications system, either party may require by written notice to the other that the value of cable communications system be submitted to arbitration in the following manner:

The Township and the grantee shall each within 15 days after such written notice select an arbitrator who shall be a disinterested person with reasonable knowledge and experience relative to the subject to be arbitrated. The two arbitrators thus selected shall immediately thereafter select a third arbitrator who shall likewise be a disinterested person having reasonable knowledge and experience relative to the subject to be arbitrated.

Within 30 days after appointment of all arbitrators and upon 10 days' written notice to the parties, the panel of arbitrators shall commence a hearing on the issue of valuation and shall receive all relevant information from the parties.

The hearing shall be recorded and may be transcribed at the request of either party. All hearing proceedings, debate and deliberations shall be open to the public and at such times and places as contained in the notice or as thereafter publicly stated, except that if two arbitrators agree, debate and deliberations may be held in closed session.

[4]

The value of the system as determined by the arbitration panel shall be determined pursuant to Subsection T(1)(a) above.

[5]

Within 30 days after the close of the hearing, the panel of arbitrators shall prepare findings and decision agreed upon by a majority of the panel which shall be filed with the Township and served by mail upon the grantee. The decision of the panel regarding the value of the system shall be final and binding upon the parties. Should there be no majority decision, the proceedings shall become null and void and shall be started anew, unless the parties extend by mutual agreement the time which the panel of arbitrators has to make a decision.

[6]

Either party may seek judicial relief in the following circumstances: (1) A party fails to select an arbitrator; (2) the arbitrators fail to select a third arbitrator; (3) one or more arbitrators is unqualified; (4) designated time limits have been exceeded; (5) the panel has not proceeded expeditiously; (6) the decision was procured by corruption, fraud or undue means; (7) there was evident partiality on the part of one or more of the arbitrators; (8) the arbitration panel exceeded its authority hereunder; (9) based upon the record, the panel abused its discretion.

[7]

In the event a court of competent jurisdiction determines that judicial relief is appropriate to the circumstances set forth above, the court in its discretion may order the arbitration procedure repeated and issue findings, orders and directions.

[8]

The expenses of the arbitrators and those expenses incurred by the panel as a whole shall be borne equally by the parties.

Notification. The purchase price shall be the value of the system as determined by the arbitration panel.

Right of inspection of records. Upon reasonable advance notice, the Township shall have the right to inspect at any time during normal business hours, all books, records, reports, maps, plans, financial statements and other like materials of the grantee relating to the operation of the cable communications system and the enforcement of this chapter and the franchise within the Township, including, but not limited to, system records where information is not available on a franchise-area basis. Grantee shall provide such information in such form as may be required by the Township for said records.

Right of inspection of construction. The Township shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and upon prior notice to the grantee, to make such tests as it shall find necessary to ensure compliance with the terms of this chapter and other pertinent provisions of the law. The grantee shall be afforded the opportunity to be present at and observe such testing and shall be provided with the results of any such testing undertaken by the Township.

Right of inspection of property. At all reasonable times, grantee shall permit examination by any duly authorized representative of the Township, of system facilities, together with any appurtenant property of grantee situated within or without the Township.

Right to require removal of property. Upon denial of renewal of this chapter or the franchise, or upon its revocation or expiration and nonrenewal, as provided for herein, the Township shall have the right to require the grantee to remove, at its own expense, all portions of the cable communications system required by public necessity from all streets and public ways within the Township within six months of receipt of a written notice from the Township.

Expense reimbursement to Township. Unless otherwise provided in the franchise agreement, the grantee shall pay the Township a sum of money which will, when added to application fees received, reimburse all costs and expenses incurred by it in connection with preparation of this chapter, the initial franchise agreements, including, but not limited to, consultant fees, attorneys' fees, publication fees, travel expenses and all other direct costs; provided, however, that the Township shall submit a detailed schedule of all such costs. Such payment shall be made within 30 days after the Township furnishes the grantee with a written statement of such initial franchise expenses.

§ 126-5 Regulation of franchise.

Regulatory authority.

On-going regulation. The Township shall exercise appropriate regulatory authority under the provisions of this chapter and applicable law. This authority shall be vested in the Township Board of Supervisors and administered through the Township Manager or his designee in order to provide day-to-day administration and enforcement of the provisions of this chapter and any franchise granted hereunder, and to carry out the Township's responsibilities with regard to cable communications.

Change in law or regulation. Notwithstanding any other provisions of this chapter to the contrary, the grantee shall at all times comply with all laws and regulations of the local, commonwealth and federal government. In the event that any actions of the commonwealth or federal government or any agency thereof, or any court of competent jurisdiction upon final adjudication, substantially reduce in any way the power or authority of the Township under this chapter or the franchise, or if in compliance with any local, commonwealth, or federal law or regulation is in conflict with the terms of this chapter, the franchise, or any law or regulation of the Township, then the Township, at its option, may notify the grantee that it wishes to negotiate those provisions which are affected in any way by such modification in regulations or statutory authority. Thereafter, the grantee shall negotiate in good faith with the Township in the development of alternate provisions which shall fairly restore the Township to the maximum level of authority and power permitted by law. The Township shall have the right to modify any of the provisions to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter and the franchise.

Authority. The Township reserves the right to exercise the maximum plenary authority, as may at any time be lawfully permissible, to regulate the cable communications system, the franchise and the grantee. Should applicable legislative, judicial or regulatory authorities at any time permit regulation not presently permitted to the Township, the Township may without the approval of the grantee engage in any such additional regulation as may then be permissible, whether or not contemplated by this chapter or the franchise.

Supervision of the franchise.

The Township shall have the following regulatory responsibility:

Administration and enforcement of the provisions of this chapter and any franchise granted hereunder.

Award, renewal, extension or termination of a franchise pursuant to the provisions of this chapter, the franchise and other applicable law.

Consent prior to sale or transfer of any franchise granted hereunder.

Performance evaluation.

Rate regulation, if applicable.

The Township also reserves the right to perform the following functions:

Develop objectives and coordinate activities related to the operation of government channels.

Approve procedures and standards for public, government and educational access and operations and services, including the use of dedicated channels and sharing of public facilities.

Coordinate plans for expansion, interconnection and growth of cable services.

Analyze the possibility of integrating cable communications with other Township, state or regional telecommunications networks.

Formulate and recommend long-range telecommunications policy for the Township, and determine the future cable-related needs and interests of the community.

(f)

Provide the administrative effort necessary for the conduct of performance evaluations, and any other activities required for the administration of the franchise.

(g)

Monitor grantee's process for handling citizen complaints and periodically inspect and analyze the records related to such complaints.

(h)

Receive applications for rate increases if applicable and provide staff assistance in the analysis and recommendations thereto.

(i)

Monitor grantee's adherence to operational standards, service requirements and line extension policies.

(j)

Assure compliance with applicable laws and ordinances.

(k)

Arrange tests and analysis of equipment and performance, as needed to insure compliance with this chapter and the franchise.

(l)

Assure continuity in service.

(m)

Receive for examination all data and reports required by this chapter.

Rates and charges.

Schedule filings. Grantee shall file with the Township schedules which shall describe all services offered, all rates and charges of any kind, and all terms and conditions relating thereto. No rates or charges shall be effective except as they appear on a schedule so filed. Grantee shall notify subscribers in writing at least 30 days prior to the implementation of any change in services offered, rates charged, or terms and conditions related thereto.

Nondiscriminatory rates. Grantee shall establish rates that are nondiscriminatory within the same general class of subscribers which must be applied fairly and uniformly to all subscribers in the franchise area for all services. Nothing contained herein shall prohibit the grantee from offering: (1) discounts to commercial and multiple-family dwelling subscribers billed on a bulk basis; (2) promotional discounts; or (3) reduced installation rates for subscribers who have multiple services. Grantee's charges and rates for all services shall be itemized on subscriber's monthly bills.

Township regulation. To the extent that federal or commonwealth law or regulation may now, or as the same may hereafter be amended to, authorize the Township to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by grantee, the Township shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the Township.

Performance evaluation.

Evaluation sessions. The Township and the grantee may, at the discretion of the Township, hold scheduled performance evaluation sessions every three years. All such evaluation sessions may be open to the public.

Special sessions. Special evaluation sessions may be held at any time during the term of the franchise at the request of the Township.

Public hearings. All evaluation sessions may be open to the public and announced in a newspaper of general circulation in accordance with public notice. Grantee shall notify subscribers of any such public meetings by announcement on the designated local government channel on the system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

Topics for review. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance and construction, grantee compliance with this chapter and the franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions.

Cooperation by grantee. During the review and evaluation by the Township, the grantee shall fully cooperate with the Township and shall provide such information and documents as the Township may need to reasonably perform its review.

Penalties. Any person, firm, corporation or utility which permits the violation of this chapter shall, upon being found liable in a civil enforcement proceeding commenced by the Township, pay a fine of $600 plus all court costs, including reasonable attorney's fees incurred by the Township. A separate offense shall arise for each day or portion thereof in which a violation is found to exist or for each section of this chapter which is found to have been violated. In addition to civil actions before a Magisterial District Judge, the Township may enforce this chapter in an action in equity brought in the Bucks County Court of Common Pleas. This chapter may be enforced initially by violation ticket (citation); see Chapter 38, Ordinance Enforcement Procedures, Article II, Tickets for Certain Offenses.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

§ 126-6 Bonds, insurance and indemnification.

Construction bond and performance bond.

Performance bond. Upon the effective date of the franchise, the grantee shall obtain and maintain during the entire term of the franchise and any extensions and renewals thereof, at its cost and expense, and file with the Township, a corporate surety bond in an amount specified in the franchise to guarantee the faithful performance of the grantee of all its obligations provided under this chapter and the franchise. Failure to timely obtain, file and maintain said bond shall constitute a substantial violation within the meaning of this section.

Conditions. The performance bond shall provide the following conditions:

There shall be recoverable by the Township jointly and severally from the principal and surety, any and all fines and liquidated damages due to the Township and any and all damages, losses, costs, and expenses suffered or incurred by the Township resulting from the failure of the grantee to: faithfully comply with the provisions of this chapter and the franchise; comply with all orders, permits and directives of any Township agency or body having jurisdiction over its acts or defaults; pay fees due to the Township; or pay any claims, liens or taxes due the Township which arise by reason of the construction, operation, maintenance or repair of the cable system. Such losses, costs and expenses shall include, but not be limited to, attorney's fees and other associated expenses.

Reduction of bond. Upon written application by the grantee, the Township may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the grantee shall be without prejudice to the grantee's subsequent applications or to the Township's right to require the full bond at any time thereafter. However, no application shall be made by the grantee within one year of any prior application.

Construction bond. The grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it will maintain through the rebuild or construction of the cable television system as required by this chapter or the franchise, a faithful construction bond in an amount specified in the franchise conditioned upon the faithful performance of the grantee in the construction or rebuild of a cable television system complying with related provisions of this chapter and the franchise, and upon the further condition that if the grantee shall fail to comply with any law, ordinance or regulation governing the construction or rebuild of the cable television system, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by the Township as a result, including the full amount of any compensation, indemnification, or cost of repair, construction, removal or abandonment of any property of the grantee, plus attorney's fees and costs, up to the full amount of the bond.

Use of performance bond and construction bond. Prior to drawing upon the performance bond or the construction bond for the purposes described in this section, the Township shall give the grantee written notice of its intent to draw on the bond. Said notice shall detail the basis for drawing on the bond and, if the grantee has not already been provided with a written notice of violation and an opportunity to correct the violation, the notice provided under this subsection shall provide the grantee with a minimum of 30 days to remedy the matter. If the matter is not remedied within the cure period specified in the applicable notice, the grantee shall have 10 days from the receipt of such written notice to make a full and complete payment. If the grantee does not make the payment within 10 days, the Township may withdraw the amount thereof, with interest, from the performance bond. Nothing herein shall preclude the Township from taking action in emergency situations without the thirty-day period specified above.

Notification. Within three days of a withdrawal from the performance bond or construction bond, the Township shall send to the grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.

Replenishment of performance bond and construction bond. No later than 30 days after mailing to the grantee by certified mail notification of a withdrawal pursuant to Subsection A(5) above, the grantee shall replenish the performance bond and/or construction bond in an amount equal to the amount so withdrawn.

Nonrenewal, alteration or cancellation of performance bond and construction bond. The performance bond and construction bond required herein shall be in a form satisfactory to the Township and shall require 30 days' written notice of any nonrenewal, alteration or cancellation to both the Township and the grantee. The grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for and file with the Township written evidence of the issuance of replacement bond or policies within 30 days following receipt by the Township or the grantee of any notice of cancellation.

Inflation. To offset the effects of inflation, the amount of the performance bond provided for herein is subject to reasonable adjustment as provided in the franchise.

Liability and insurance.

Certificate of insurance. Prior to commencement of construction, but in no event later than 60 days after the effective date of the franchise and thereafter continuously throughout the duration of the franchise and any extensions or renewals thereof, the grantee shall furnish to the Township certificates of insurance, approved by the Township, for all types of insurance required under this section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this chapter.

Filing. Any insurance policy obtained by the grantee in compliance with this section shall be filed and maintained with the Township Manager during the term of the franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation consistent with Subsection B(8) below. Grantee shall immediately advise the Township of any litigation that may develop that would affect this insurance.

No liability limit. Neither the provisions of this section or any damages recovered by the Township hereunder, shall be construed to or limit the liability of the grantee under any franchise issued hereunder or for damages.

Endorsement. All insurance policies maintained pursuant to this chapter or the franchise shall contain the following, or a comparable, endorsement:

It is hereby understood and agreed that this insurance policy may not be canceled by the insurance company nor the intention not to renew be stated by the insurance company until 30 days after receipt by the Township Manager, by registered mail, of a written notice of such intention to cancel or not to renew.

Hold harmless clause. All contractual liability insurance policies maintained pursuant to this chapter or the franchise shall include the provision of the following hold harmless clause:

The grantee agrees to indemnify, save harmless and defend the Township, its officials, agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney's fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by the franchise and performed or caused to be performed by grantee, its employees, agents and contractors or their successors. The foregoing indemnity shall apply except if such injury, death or damage is caused directly by the negligence or other fault of the Township, its agents, servants, or employees or any other person indemnified hereunder.

Commonwealth institution. All insurance policies provided under the provisions of this chapter or the franchise shall be written by companies authorized to do business in the commonwealth, and approved by the Pennsylvania Department of Insurance.

Names insured. At any time during the term of the franchise the Township may request and the grantee shall comply with such request to name the Township as an additional named insured for all insurance policies written under the provisions of this chapter or the franchise.

Inflation. To offset the effects of inflation and to reflect changing liability limits, all of the overages, limits and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three-year period of the franchise, applicable to the next three-year period, upon the determination of the Township.

General liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, general liability insurance insuring the grantee in the minimum of:

$1,000,000 for property damage per occurrence.

$2,000,000 for property damage aggregate.

$5,000,000 for personal bodily injury or death to any one person.

$10,000,000 bodily injury or death aggregate per single accident or occurrence.

(10)

Policy inclusions. Such general liability insurance must include coverage for all of the following: comprehensive form, premises-operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad-form property damage and personal injury.

(11)

Automobile liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, automobile liability insurance for owned, nonowned or rented vehicles in the minimum amount of:

$1,000,000 for bodily injury and consequent death per occurrence.

$500,000 for bodily injury and consequent death to any one person.

$500,000 for property damage per occurrence.

(12)

Worker's compensation and employer's liability insurance. The grantee shall maintain and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise workers' compensation and employer's liability, valid in the Commonwealth, in the minimum amount of:

Statutory limit for workers' compensation.

$100,000 for employer's liability.

(13)

No limitation on liability. None of the provisions of this chapter or any insurance policy required herein, or any damages recovered by the Township hereunder, shall be construed to excuse the faithful performance by or limit the liability of grantee under this chapter or the franchise for damages either to the limits of such policies or otherwise.

Indemnification.

Indemnification. To the fullest extent permitted by law, grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the Township, its officers, public officials, boards and commissions, agents and employees from and against any and all lawsuits, claims, (including, without limitation, workers' compensation claims against the Township or others), causes of action, actions, liability and judgments for injury or damages (including, but not limited to, expenses for reasonable legal fees and disbursements assumed by the Township in connection therewith but excluding claims, suits, actions, liabilities, judgments or damages that are the direct result of negligence or deliberate acts or omission of the Township, its officers, employees, agents, boards or commissions):

To persons or property in any way arising out of or through the acts or omissions of grantee, its subcontractors, agents or employees, to which grantee's negligence shall in any way contribute, and regardless of whether the Township's negligence or the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage.

Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, tradename, service mark or patent or any other right of any person, firm or corporation, but excluding claims arising out of or related to Township or educational access programming.

Arising out of grantee's failure to comply with the provisions of any federal, commonwealth or local statute, ordinance or regulation applicable to grantee in its business hereunder.

The foregoing indemnity is conditioned upon the following: The Township shall give grantee reasonable notice of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Grantee will provide the defense of any claims brought against the Township under this section of the franchise by selecting counsel of grantee's choice to defend the claim, subject to the reasonable consent of the Township; which will not unreasonably be withheld. Nothing herein shall be deemed to prevent the Township from cooperating with the grantee and participating in the defense of any litigation by its own counsel at its own costs and expense, provided however, that grantee shall have the right to defend, settle or compromise any claim or action arising hereunder and grantee shall have the sole authority to decide the appropriateness and the amount of any such settlement. Recovery by the Township of any sum by reason of the liquidated damages required by the franchise shall be deducted from any recovery which the Township might have against the grantee arising out of the same transaction under the terms of this section.

§ 126-7 Design and construction provisions.

Authority to construct.

Authorization to commence construction and application procedures. Within 30 days after acceptance by the grantee of a franchise, the grantee shall apply for any needed contracts for pole use. Pole space and other facilities obtained from the Township, utilities, and other lawful uses of the public way shall be at the cost and expense of the grantee. Within 30 days after completion of the make-ready survey identifying the routes of the system facility, the grantee shall apply for all additional licenses from the commonwealth, Township, or other necessary parties, such as the railroads for crossing under or over their property. In any event, all necessary applications for permits, licenses, certificates and authorizations shall be applied for in a timely fashion so that such filing and processing shall not interfere with or cause delay with the construction scheduled as outlined in the franchise.

Power to contract. Upon grant of the franchise and in order to construct, operate and maintain a cable system in the Township, the grantee shall obtain right-of-way permits from appropriate Township, commonwealth, county and federal officials necessary to cross or otherwise use highways or roads under their respective jurisdiction; obtain permission, when required, from the Federal Aviation Administration to erect and maintain antennas; and obtain whatever other permits a Township, county, commonwealth or federal agency may require.

Construction and technical standards.

Compliance with construction and technical standards. Grantee shall construct, rebuild, install, operate and maintain its system in a manner consistent with all laws, ordinances, construction standards, governmental requirements, FCC technical standards, and detailed technical standards submitted by grantee as part of its application, which standards are incorporated by reference herein. The grantee, through the system, shall provide uniform, strong signals which are free from any significant distortion and interference. The system shall be designed, constructed, operated and maintained for twenty-four-hours-a-day continuous operation. The system shall produce, for reception on subscribers' receivers which are in good working order, either monochrome or color pictures (providing the receiver is color capable) which are free from any significant interference or distortion which would cause any material degradation of video or audio quality.

State of the art. The grantee shall construct, install, operate and maintain its system in accordance with the then current standards of cable communications, such standards to include, but not be limited to, the following:

The system will be constructed to permit a minimum of 750 MHz operation.

The grantee shall maintain its system facilities in a manner which will continue to enable it to add new services and associated equipment as specified in the franchise agreement.

Township approval of construction plans. Prior to the erection of any towers, poles or conduits or the upgrade or rebuild of the cable communications system under this chapter, the grantee shall first submit to the Township and other designated parties for approval a concise description of the facilities proposed to be erected or installed, including engineering drawings, if required, together with a map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, underground conduit, or fixture or any rebuilds or upgrading of the cable communications system shall be commenced by any person until approval therefor has been received from the Township. Approval of each phase of new construction or rebuild design plans shall be deemed granted for any submission made to the Township unless expressly disapproved within 60 days. All other approvals, such as permits, will be provided within the time frames specified by relevant law and regulation.

Contractor qualifications. Any contractor proposed for work of construction, installation, operation, maintenance and repair of system equipment must be properly licensed under laws of the commonwealth and all local ordinances.

Minimum interference. The grantee's system and associated equipment erected by the grantee within the Township shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. No pole or other fixture placed in any public way by the grantee shall be placed in such a manner as to interfere with normal travel on such public way.

Township maps. The Township does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public rights-of-way, where necessary, the location shall be verified by excavation.

Quality of construction. Construction, installation, operation and maintenance of the cable communications system shall be performed in an orderly and workmanlike manner, in accordance with then current technological standards and the manufacturer's specifications. All cables and wires shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.

Construction standards. Grantee shall at all times comply with:

National Electrical Safety Code (National Bureau of Standards).

National Electrical Code (National Bureau of Fire Underwriters).

Bell System Code of Pole Line Construction.

Applicable FCC or other federal, commonwealth and local regulations; and standards as set forth in the franchise.

Noninterference. In any event, the system shall not endanger or interfere with the safety of persons or property in the franchise area or other areas where the grantee may have equipment located.

(10)

Antennas. Any antenna structure used in the cable communications system shall comply with construction, marking and lighting of antenna structure standards as required by federal and commonwealth or regulation.

(11)

OSHA. All worker facilities, conditions and procedures that are used during construction, installation, operation and maintenance of the cable system shall comply with the standards of the Occupational Safety and Health Administration.

(12)

RF leakage. RF leakage shall not exceed FCC-permitted maximum levels as evidenced by annual cumulative leakage index measurements. FCC rules and regulations shall govern. The system shall cause no measurable interference in TV signal reception to any operating receiver not connected to and serviced by the system.

(13)

Standby power. The grantee shall maintain equipment capable of providing standby power for a minimum of eight hours for the headend and two hours for transportation and trunk amplifiers.

System construction schedule. The franchise shall specify the construction schedule.

Extension of service. The grantee shall provide service to all dwelling units or commercial entities requesting service and in any additional areas annexed to the Township within six months of such request, subject to any line extension requirements specified in the franchise agreement.

Use of streets.

Underground installation. All installations shall be underground in those areas of the Township where public utilities providing both telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are aboveground at the time of installation, grantee may install its service aboveground; provided, that at such time as those facilities are required to be placed underground by the Township or are placed underground, the grantee shall likewise place its services underground without additional cost to the Township or to the individual subscriber so served within the Township. Where not otherwise required to be placed underground by this chapter or the franchise, the grantee's system shall be located underground at the request of the adjacent property owner, provided that the excess cost over the aerial location shall be borne by the property owner making the request. All cable passing under the roadway shall be installed in conduit.

Permits. Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate Township agencies, complete use agreements with the utility companies, obtain all construction permits and receive written approval of the Township before proceeding, which approval shall not be unreasonably withheld or delayed.

Interference with persons, improvements, public and private property and utilities. The grantee's system and facilities, including poles, lines, equipment and all appurtenances, shall be located, erected and maintained so that such facilities shall:

Not endanger or interfere with the health, safety or lives or persons.

Not interfere with any improvements the Township, county or commonwealth may deem proper to make.

Not interfere with the free and proper use of public streets, alleys, bridges, easements or other public ways, places or property, except to the minimum extent possible during actual construction or repair.

Not interfere with the rights and reasonable convenience of private property owners, except to the minimum extent possible during actual construction or repair.

Not obstruct, hinder or interfere with any gas, electric, water or telephone facilities or other utilities located within the Township.

Restoration to prior condition. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the grantee shall, at its own cost and expense and in a manner approved by the Township, replace and restore all paving, sidewalk, driveway, landscaping or surface of any street or alley disturbed, in as good a condition as, or better than, before said work was commenced and in a good workmanlike, timely manner in accordance with standards for such work set by the Township. Weather permitting, restoration shall be undertaken within no more than 10 business days after the damage is incurred and the grantee shall use its best efforts to complete the restoration as soon as possible thereafter.

Relocation of the facilities. In the event that at any time during the period of the franchise, the Township, county or commonwealth shall lawfully elect to alter, or change, the grade of any street, alley or other public ways, the grantee, upon reasonable notice by the proper authority, shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

Cooperation with building movers. The grantee shall, on the request of any person holding a building moving permit issued by the Township, temporarily raise or lower its wire to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 15 working days' advance notice to arrange for such temporary wire changes.

Tree trimming. The grantee shall have the authority, except when in conflict with existing Township ordinances, to trim any trees upon and overhanging public right-of-way so as to prevent the branches of such trees from coming in contact with system facilities, except that at the option of the Township, such trimming may be done by it, or under its supervision and direction, at the expense of the grantee.

Easements. All necessary easements over and under private property shall be the responsibility of the grantee.

Private property. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the cable communications system in the Township of Warrington. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operating or maintenance of the cable communications system at its sole cost and expense.

Erection, removal and common use of poles.

Approval for poles. No poles shall be erected by the grantee without prior approval of the Township with regard to location, height, types and any other pertinent aspect and consideration given by the Township to the availability of existing poles and local aesthetics. However, no location of any pole or wire-holding structure of the grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the Township determines that the public convenience would be enhanced thereby.

Construction reporting requirements.

Progress reports. Within 30 days of the granting of a franchise to construct a new system pursuant to this chapter, the grantee shall provide the Township with a written progress report, detailing work completed to date and a schedule for completion of construction. Such report shall include a description of the progress in applying for any necessary agreements, licenses, or certifications and any other information the Township Manager may deem necessary. The content and format of the report will be determined by the Township Manager and may be modified at his/her discretion. The time frame established above shall not apply to the upgrade or rebuild of an existing system.

Time frame for reports. Written progress reports as described in Subsection G(1) above, shall be submitted to the Township on a bimonthly basis throughout the new construction or rebuild process. The Township Manager may require more frequent reporting if he/she determines it is necessary to better monitor the grantee's progress.

Subscriber information. Prior to the commencement of any significant system construction, the grantee shall produce an informational document to be distributed to all residents of the area to be under construction, which shall describe the activity that will be taking place. The informational document shall be reviewed and approved by the Township Manager prior to its distribution.

Tests and performance monitoring.

Completion tests. Not later than 60 days after any new or substantially rebuilt portion of the system is made available for service to subscribers, and thereafter on the annual anniversary of the effective date of the franchise, the grantee shall conduct technical performance tests to demonstrate full compliance with all technical standards contained in this chapter and the franchise, and the technical standards and guidelines of the FCC.

Methodology. Such tests shall be performed by, or under the supervision of, a qualified engineer or technician with proper training and experience. A copy of the report shall be submitted to the Township, describing test results, instrumentation, calibration and test procedures, and the qualification of the engineer responsible for the tests.

Test points. System monitor test points shall be established at or near the output of the last amplifier in the longest feeder line, at or near trunk line extremities. Such periodic tests shall be made at the test points as shall be required by the FCC and/or the franchise.

FCC tests. In addition to the performance test reports required herein, a copy of any performance test reports required by the FCC shall be submitted to the Township within 60 days of completion.

Township-required tests. Whenever there have been similar complaints made or when there exists other evidence which, in the judgment of the Township, casts doubt on the reliability or quality of the grantee's system, the Township shall have the right and authority to compel the grantee to test, analyze and report on the performance of its system with respect to the specified complaints. To the extent permitted by law or regulation, the Township may require additional tests, full or partial repeat tests, different test procedures or tests involving a specific subscriber's terminal. Reports on such tests shall be delivered to the Township no later than 30 days after the Township formally notifies the grantee and shall include the following information: the nature of the complaints which precipitated the special tests; what system component was tested; the equipment used, and procedures employed in said testing; the results of such tests; and methods by which said complaints were resolved. Said tests and analyses shall be supervised by a qualified engineer or technician, who shall sign all records of the special tests and forward same to the Township with a report interpreting the results of the tests and recommending what actions should be taken. If requested by the Township, and at the Township's expense, the grantee shall allow an independent engineer to conduct such tests. Grantee shall reimburse the Township for the expense of the tests if such tests indicate that the cable communications system does not substantially comply with relevant laws and regulations.

§ 126-8 Service provisions.

Services to subscriber and users.

Programming. Concurrently with the activation of the cable communications system in the Township, the grantee shall provide all services to subscribers as described herein and in the franchise.

The system shall carry the broad categories of programming and services listed in the franchise. Should the grantee desire to change the selection of programs or services offered on any of the tiers, it shall maintain the mix, quality and level of services provided over the system. Any such change in programs or services offered shall comply with the conditions and procedures contained in the franchise, and shall be reported to the Township at least 30 days prior to the proposed implementation, and when practicable, 45 days' prior notice to the Township. The grantee shall notify all subscribers in writing at least 30 days prior to implementing any change in the selection of programs or services offered on any tiers, or prior to adding or deleting any channels or changing the channel number for any station. The grantee shall use its best efforts to ensure diversity of programming.

A basic service tier shall be offered to subscribers throughout the term of this chapter and the franchise.

At a minimum, the grantee shall provide and maintain, within the time frame specified in the franchise, the following access channels whose purposes are outlined below:

"Government Access Channel," which shall be a specifically designated channel for noncommercial local governmental use and shall be managed, scheduled and programmed exclusively by the Township.

"Educational Access Channel," which shall be a specifically designated channel for noncommercial use by local public and private school authorities, and shall be managed, scheduled and programmed exclusively by them.

"Public Access Channel," which will be a specifically designated channel for noncommercial use by members of the general public on a nondiscriminatory basis and shall be managed and scheduled by the grantee.

The grantee shall make available leased-access channels for commercial use as required by federal law.

The grantee shall fully provide, at a minimum, services, facilities and equipment for public, educational and government access as indicated in the franchise.

Emergency override. The grantee shall provide, service and maintain public emergency transmission facilities to the Township, as described in the franchise.

Installations, connections and other grantee services.

Standard installations. Standard installation shall consist of a service not exceeding 150 feet from a feeder cable or pedestal attachment to the customer's residence. Service in excess of 150 feet and concealed wiring shall be charged at such cost as exceeds normal installation costs. The desire of the subscriber as to the point of entry into the residence or commercial establishment and as to the location of pedestals shall be observed whenever possible. Runs in building interiors shall be as unobtrusive as possible. The grantee shall use due care in the process of installation and shall repair any damage to the subscriber's property caused by said installation. Weather permitting, such restoration shall be undertaken within no more than 10 days after the damage is incurred and the grantee shall use its best efforts to undertake and complete such restoration as soon as possible thereafter.

On-time guarantee. Excluding circumstances beyond its control, the grantee shall guarantee that service and installation appointments will be performed promptly. To this end, and except as provided above, grantee shall not charge a subscriber for an installation where the grantee is late for the installation appointment. Furthermore, in the event grantee is late for a service appointment, grantee shall provide the affected customer with a credit of $20. Where the grantee schedules appointment windows, the grantee shall be considered late for an appointment if it does not arrive at the customer's home within the scheduled window.

Antennas and antenna switches. Except in cases where safety is threatened after notification to the affected party and the safety problem is not corrected, the grantee shall not, as a condition to providing cable communications service, require any subscriber or potential subscriber, to remove any existing antenna structures for the receipt of over-the-air television signals. The grantee shall install, upon the request of the subscriber, an RF or antenna switch where required for the provision of services provided by the grantee. If the grantee finds safety a problem, the affected subscriber shall be notified, provided with an opportunity to correct the problem and have service resumed after correction has occurred.

Lockout devices. The grantee shall provide to the potential subscriber, as part of its promotional literature, information concerning the availability of a lockout device for use by a subscriber. The grantee reserves the right to require a reasonable deposit for the use of this device, as set forth in the rate schedule. The lockout device described herein shall be made available to all subscribers requesting it beginning on the first day that any cable service is provided.

Reconnection. Grantee shall restore service to customers wishing restoration of service provided customer shall first satisfy any previous obligations owed.

Free disconnection. Subscribers shall have the right to have cable service disconnected without charge. Such disconnection shall be made as soon as practicable and in no case later than 15 days following notice to grantee of same. A refund of unused service charges shall be paid to the customer within 45 days from the date of termination of service.

Service calls and complaint procedures.

Business office. The grantee shall establish, operate and maintain within 10 miles of the Township a business office, teleproduction facility, and maintenance and repair facility for the purpose of receiving inquiries, requests and complaints concerning all aspects of the construction, installation, operation and maintenance of the system and for the payment of subscribers' service charges, and providing facilities for the production of programming.

Telephone service. The grantee shall have a locally listed or toll-free telephone number to receive subscriber service calls 24 hours a day, seven days a week. The grantee shall provide a sufficient number of telephone lines and telephone staff members to enable subscribers to reach the grantee as specified in the FCC regulations. Grantee's number shall be published and made available to subscribers and the general public. The grantee shall in addition provide a private telephone number to the Township and utility companies to enable the Township or the utility companies to reach the grantee in case of emergency on a twenty-four-hour, seven-days-a-week basis for same day response.

Response time. The grantee shall respond to and resolve subscribers' complaints or requests for service in connection with repairs and maintenance and malfunctions of system facilities. The grantee shall respond as quickly as possible to such complaints and requests, but shall in any case respond within the time frames set forth in the franchise. Complaints or requests which may pose a potential health and safety hazard will be responded to immediately. In connection with billing complaints, the grantee shall respond within seven business days.

Grantee rules. The grantee shall prepare and file with the Township copies of all of its rules and regulations in connection with the handling of inquiries, requests and complaints. The grantee shall, by appropriate means, such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and furnish information concerning the Township office responsible for the administration of the franchise including, but not limited to, the address and telephone number of said office.

Complaint records. The grantee shall keep full records in connection with all inquiries, or complaints and requests in connection with the system that result in the generation of a work order or are referred by the Township, or that are referred to the grantee's customer satisfaction department for resolution. Such records shall identify the person contacting the grantee, and the person responding on behalf of the grantee, the subject matter of the contact, the date and time it was received, the resolution of the matter in question or the action taken by the grantee in connection with the contact, and the date and time thereof, and such other information as may be deemed pertinent by the grantee. These records shall be made available for periodic inspection by the Township.

Equipment service. The grantee shall service or replace without charge above the normal lease cost all equipment which it owns and leases to the subscriber; provided, however, that the grantee may charge a subscriber for service to or replacement of any equipment damaged due to negligence of such subscriber. This provision shall not apply to any equipment covered by a separate service/maintenance contract.

Investigation and remedial action. For recurrent complaints regarding service deficiencies (other than total or partial loss of service, such as "ghosting," weak audio signal, distortion and the like), the Township Manager may require the grantee to investigate and report to him/her the causes and cures thereof, and the Township Manager may also conduct his/her own investigation. Thereafter, the Township Manager may order specified remedial action to be taken within reasonably feasible time limits. If such action is not taken, or is ineffective, or if within 30 days the grantee files with the Board of Supervisors a notice of objection to the order, the Board of Supervisors may conduct a hearing and may, if the evidence warrants a finding of fault on the part of the grantee, take appropriate action pursuant to the terms of this chapter.

Continuity of service mandatory.

Subscription rights. It shall be the right of all subscribers to receive continuous, uninterrupted service insofar as their financial and other obligations to the grantee are honored.

Cooperation. In the event that the grantee elects to rebuild, modify or sell the system, or the Township gives notice of intent to terminate or fails to renew its franchise, the grantee shall cooperate with the Township or new grantee or operator in maintaining continuity of service to all subscribers. During such period, grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for the services when it no longer operates the system.

Failure to provide continuity. In the event the grantee fails to operate the system for 30 consecutive days without prior approval of the Township or without just cause, the Township may, at its option, operate the system or designate an operator until such time as grantee restores service under conditions acceptable to the Township or a permanent operator is selected. If the Township is required to fulfill this obligation for the grantee, the grantee shall reimburse the Township for all reasonable costs or damages in excess of revenues from the system received by the Township that are the result of the grantee's failure to perform.

Protection of subscriber privacy.

Protection of subscriber privacy mandatory. Grantee shall at all times protect the privacy of subscribers, as provided in this chapter and other applicable federal, commonwealth and local laws.

Notice of privacy provisions. At the time of entering into an agreement to provide any cable service or other service to a subscriber, and at least once a year thereafter, grantee shall provide notice in the form of a separate written statement to subscriber which clearly and conspicuously informs the subscriber of the privacy rights of the subscriber and the limitations placed upon grantee with regard to the collection, retention, inspection and dissemination of any personally identifiable information.

Correction policy. Each subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected and maintained by grantee. Such information shall be made available to the subscriber at reasonable times and at a convenient place designated by grantee. A cable subscriber shall be provided reasonable opportunity to correct any error in such information.

Rights of individuals.

Nondiscrimination required. Grantee shall not deny service, deny access or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin, age, sex or physical or mental handicaps, provided the subscriber shall pay all applicable fees for the service desired. Grantee shall comply at all times with all other applicable federal, commonwealth and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this chapter by reference.

Fairness of accessibility. The entire system of the grantee shall be operated in a manner consistent with the principles of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies and other entities having a legitimate use for the network; and no one shall be arbitrarily excluded from its use; allocation of use of said facilities shall be made according to the rules or decisions of the grantee and any regulatory agencies affecting the same.

Information accessibility. Each individual shall have the right to information concerning the provisions of this chapter and the rules and regulations formulated pursuant to it by the Board of Supervisors, the grantee, agent or entity created hereunder or pursuant to this chapter.

§ 126-9 Books, records and reports.

Books and records available to the grantor.

Records. The Township or its officially designated representatives shall have the right to inspect all pertinent or relevant records, books, plans, customer service logs and financial statements maintained by grantee which relate to the operation of the cable system, enforcement of this chapter and the franchise, and directly to computation of gross annual revenues, and construction and location of facilities within the Township, at grantee's place of business upon reasonable notice and during normal business hours. Access to the aforementioned records shall not be denied by the grantee on the basis that said records contain "proprietary" information. The Township and its officially designated representatives agree to treat any information disclosed and reports, maps and other documents submitted to or inspected by the Township or its designated representatives as confidential and only to disclose it to employees, agents or representatives thereof that have a need to know or in order to enforce the provisions hereof. Grantee shall make available adequate financial records within the Township to permit the auditing of the grantee's gross revenues. The Township shall notify the grantee in a timely manner if a request is made for information which the grantee has clearly marked as "confidential." Such notification shall specify the period of time the grantee has to submit to the Township, any comments on the request, and may, at its own expense, resist the request. The Township, in any event, shall not be liable for any disclosure required by law.

Review. Grantee shall permit any duly authorized representative of the Township to examine and copy or transcribe any and all maps and other records kept or maintained by grantee or under its control concerning the operations, affairs, transactions or property of grantee. If any of such maps or records are not kept in the Township, or upon reasonable request made available in the Township, and if the Township shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by grantee.

Reports required. The grantee shall file with the Township:

Regulatory communications. Upon request from the Township, any reports required by the FCC, including, but not limited to, any annual proof of performance tests and results, equal employment opportunity (EEO) reports, required financial information, and all petitions, applications and communications of all types submitted by grantee to the FCC, the Security and Exchange Commission (SEC), or any other federal or commonwealth regulatory commission or agency, having jurisdiction over any matter affecting operation of grantee's system will be made available to the Township.

Facilities report. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the Township. After completion of initial construction or any rebuild, maps designating the location of the cable plant shall be filed with the Township. Thereafter, any revisions to the system shall be reflected in updated maps provided to the Township in a timely manner after such changes are made.

Construction reports. During the progress of any initial, rebuild, or other major construction undertaken during the term of the franchise, reports shall be sent to the Township on a bimonthly basis until construction is complete, as specified in this franchise.

Proof of performance tests. Proof of performance test results shall be supplied to the Township when sections of the system are rebuilt and annually as required in § 126-7H(2) and (5)of this chapter.

Test required by Township. Technical tests required by Township as specified in § 126-7H(5)of this chapter and the franchise shall be submitted within 30 days of notification.

Change in service. Written notification of any change in programming or service shall be provided to the Township 30 days prior to implementation, and when practicable, prior notice shall be given 45 days in advance.

Grantee rules. The grantee's schedule of charges, contract or application forms of regular subscriber service policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the grantee's policy in connection with its subscribers shall be filed with the Township and conspicuously posted in the grantee's local office. All such terms and conditions, including schedule of charges, must have been filed with the Township prior to their becoming effective. Such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable commonwealth and federal laws, rules or regulations.

Proof of bonds and insurance. Grantee shall submit to the Township the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this chapter, or certified copies thereof, and written notice of payment of required premium.

Financial and ownership reports. The following financial reports for the franchise area shall be submitted to the Township as provided for below:

An annual ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the franchise of 5% or more to be provided where any changes in ownership have occurred from those previously reported.

A fully audited and certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of nonsubscriber revenue, line item operating expenses, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule to be provided every three years, if requested. The fully audited and certified information will be provided on a Township basis for gross revenue. Required financial information may be provided on a consolidated basis for expenses, depreciation, and sources and applications of funds.

A current annual statement of all capital expenditures including the cost of construction and of equipment to be provided every three years, if requested. Such information may be provided on a consolidated basis where franchisee-specific information is not available.

An annual list of any changes to the officers and members of the board of grantee and of any parent corporation.

An annual report of the grantee and any parent corporation.

(10)

Operational reports. The following system and operational reports shall be submitted to the Township upon written request by the Township Manager or his designee:

A report on the system's technical tests and measurements as set forth herein and in the franchise.

A report on programs and services offered by grantee, including public, educational, government and leased access.

An annual summary of the previous year's activities including, but not limited to, subscriber totals for each category of service offered, including number of pay units sold, new services offered, and the amount collected annually from other users of the system and the character and extent of the service rendered thereto.

An annual summary of complaints received and handled in addition to any reports required in the franchise.

An annual projection of system and service plans for the future.

(11)

Additional reports. The grantee shall prepare and furnish to the Township at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the Township in connection with this chapter or the franchise, upon written request of the Township Manager or his designee.

Records required.

Mandatory records. The grantee shall at all times maintain:

A record of all complaints received and interruptions or degradation of service experience for the preceding period prior to a performance review or a maximum of three years, whichever is less.

A full and complete set of plans, records and "as built" maps showing the location of all cable communication system equipment installed or in use in the Township, exclusive of subscriber service drops.

Other records. The Township may impose reasonable requests for additional information, records and documents from time to time.

§ 126-10 Miscellaneous provisions.

Captions. The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.

Franchise applications.

Invitation of any applications for a franchise, public notice of "request for proposals." The Township may invite applications for a cable television franchise by means of a public notice advertising the availability of its "request for proposals."

The public notice shall contain, but need not be limited to:

A description of the franchise area which is sought.

A statement that a formal "request for proposals" is available to prospective applicants from a Township official whose name, address and telephone number are specified.

A statement that applications for the franchise must be submitted in writing in the form and manner specified in the "request for proposals" no later than a day certain.

[4]

A statement that all applications will be made available for public inspection during normal business hours at a specified location.

Request for proposals. Prior to inviting any applications for any television franchise, the Township shall prepare a "request for proposals" that shall contain, but need not be limited to, the following:

A description of the cable television system and services desired by the Township including any system specifications established by the Township.

A statement specifying the form that all applications shall follow.

A statement indicating the amount of the application fee (if any) to be submitted with the application, and the manner in which such fee is to be submitted.

A statement that all applications must contain the information required by the "request for proposals."

The closing date for the submission of applications.

(f)

The name, address and telephone number of the Township official(s) who may be contacted for further information.

Requirement for public hearing on reasonable notice. The Township shall conduct a public hearing prior to awarding or denying any cable television franchise. The hearing shall be preceded by reasonable notice to each of the franchise applicants and to the public, and shall be conducted by the Township Board of Supervisors in accordance with the following procedures:

There shall be an agenda for the hearing which shall specify the proposal(s) to be considered at the hearing.

Every person who has applied for a cable television franchise shall appear at the hearing either in person or by authorized representative. The application of any applicant not so appearing shall not be further considered, except for good cause shown.

All persons shall be given opportunity to participate in the hearing, but nothing contained herein shall limit the power of the presiding officer to establish reasonable time limits and otherwise limit repetitive statements or questions.

The notice of hearing shall:

Conform to all relevant commonwealth and local laws and ordinances.

Describe the agenda to be considered at the public hearing.

Indicate that copies of all franchise applications are available for public inspection during normal business hours at a place to be specified in the notice.