[HISTORY: Adopted by the Board of Supervisors of the Township
of West Vincent 7-1-1991 by Ord.
No. 63. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "West Vincent
Township Cable Television Ordinance."
The following words and phrases, as used in this chapter, shall
have the meanings ascribed to them in this section unless the context
clearly indicates otherwise. Words used in the present tense shall
include the future tense; words used in the plural shall include the
singular; and words used in the singular shall include the plural.
"May" will be interpreted as permissive, and "shall" will be interpreted
as mandatory. Other terms not specifically defined will have the meanings
generally accorded to them in the cable television industry.
Tier, pay channels or pay-for-view events offered by the
company to subscribers for extra charges above the charge for basic
cable service.
An entity which owns or controls, is owned or controlled
by, or is under common ownership with a grantee.
A mutually agreed to calendar date which will serve as that
date on which future basic rates may be adjusted according to an annual
cycle.
The tier of service regularly provided to all subscribers
that includes the retransmission of all must-carry broadcast television
signals as defined in rules established by the Federal Communications
Commission (FCC) or, in the absence of at least three must-carry signals,
any unaltered broadcast television signals and the public, educational
and governmental channels, as required by the franchising authority
pursuant to Title VI of the Cable Communications Policy Act.
All remuneration received directly by the grantee from subscribers
in payment for regularly furnished basic cable service, but shall
not include any taxes on services furnished by the grantee imposed
on any subscriber or user by any government, governmental unit, political
subdivision, agency or instrumentality, and collected by the grantee.
The Board of Supervisors of West Vincent Township.
That body of federal law which was enacted on October 30,
1984. and having an effective date of December 29, 1984, or as thereafter
amended.
(i) The one-way transmission to subscribers of video programming
or other programming service; and (ii) subscriber interaction, if
any, which is required for the selection of such video programming
or other programming service.
A system of antennas, cables, wires, lines, towers, wave
guides, or other conductors, converters, equipment or facilities,
designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing audio, video and other forms
of electronic or electrical signals.
Any cable television company licensed by the Commonwealth
of Pennsylvania to do business in the state and authorized by the
West Vincent Township Board of Supervisors to construct, operate and/or
maintain a cable television system in the Township of West Vincent.
The federal administrative agency authorized to regulate
cable television under the statutes or laws of the United States and
any successor agency of the United States lawfully exercising such
authority.
The initial authorization, or renewal thereof, issued by
the Township, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, or otherwise,
which authorizes construction and operation of a cable television
system for the purpose of offering cable service to subscribers.
That area within the corporate limits of the Township as
now or hereafter constituted.
Any assessment imposed hereunder by the Township on the company
solely because of its status thereas.
The franchise holder of rights granted by the Township under
this chapter.
The monthly cable service revenues actually received by the
grantee from subscribers of the cable system. Included are revenues
actually received in payment for HBO, Cinemax, Showtime, Disney, PRISM,
The Movie Channel, and similar pay-channel programming, less any subscription
fees paid by the grantee to grantee's supplier of premium services.
Such phrase shall not include pay-per-view (ppv) revenues or revenues
received from any advertising carried on the cable system, nor shall
such phrase include any taxes on cable service which are imposed directly
or indirectly on any subscriber thereof by any governmental unit or
agency, and which are collected by the grantee on behalf of such governmental
unit or agency.
Special one-time events, made available from time to time,
to only those cable television subscribers who prearrange to pay a
special one-time fee for such individual event.
An individual, partnership, association, joint-stock company,
trust corporation, or other legal entity.
All property owned, installed or used by the grantee in the
conduct of a cable television system in the Township.
The surface of and the space above and below, and within
the right-of-way of any public road, street, highway, bridge, court,
boulevard, lane, public way, drive, circle or other public right-of-way,
including, but not limited to, public utility easements, dedicated
utility strips or rights-of-way, and any temporary or permanent fixtures
or improvements located thereon, now or hereafter held, owned or dedicated
to the Township.
A category of cable service or other services, provided by
grantee, and for which a separate charge is made by grantee.
The latest in cable television technology which may be practically
applied within the Township.
A person or user contracting to receive cable television
service and subject to the payment of rates provided for such service.
A system for transmission and receipt of audio signals and/or
visual images by means of electrical impulses.
The Cable Communications Policy Act of 1984, codified at
47 U.S.C. § 521 et seq.
The Township of West Vincent, also called the "franchising
authority."
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
Upon application duly made, the Township may grant to a designated
grantee by a duly executed franchise agreement the right and privilege
to engage in the business of operating and providing a cable television
system within the Township, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain and retain in, on,
over, under, upon, across and along any public way, and all extensions
thereof and additions thereto in the franchise area, such poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, pedestals,
amplifiers, and other property as may be necessary or appurtenant
thereto. Any such grant shall be solely for the purpose of transmission
and distribution of audio, digital, and video impulses and television
energy in accordance with the laws and regulations of the United States
of America, of the Commonwealth of Pennsylvania, and of this Township.
The Township may promulgate a form for the making of any such application,
and in the event that such a form is promulgated, then application
shall be made only on such form. Any right granted pursuant to this
chapter shall be conditioned on the faithful performance and observance
of the conditions, regulations, and reservations herein specified
and shall further be conditioned upon the prompt payment of the amounts
provided for herein.
The right of any grantee to the use and occupancy of the public
way shall not be exclusive to the grantee. The Township shall have
the right to grant one or more such franchises during the term hereof,
including the right to use and occupy public streets for cable television
system purposes. The Township shall require a franchise agreement
of any grantee and of any other individual or company engaging in
the cable television business within any portion of the Township.
Further, any grantee shall have the right to adjust current rates
according to evaluation of those rates effected by any other grantee
operating a cable television franchise in the Township. Such adjustments
shall be accomplished through notification filed with the Township
Secretary and shall occur automatically on the date established by
the franchise agreement.
Subject to the requirements of the Act, any franchise granted
hereunder is not intended and shall not be construed as providing
an automatic right of renewal at the end of its terms. If the franchise
has been in compliance with this chapter, the renewal should not be
withheld unreasonably.
A.
Rights granted to any grantee hereunder shall take effect and be
in full force from and after the date upon which each application
is approved by the Township. The rights granted hereunder shall continue
in full force and effect for an initial period of not less than 15
years from the date of application approval, and each grantee whose
application is approved shall have the right to renew the rights granted
hereunder for an additional term of five years and, thereafter, in
additional five-year increments, from and after the expiration date
of any initial or renewal period. The right to renew for each additional
renewal period shall be exercised by the grantee by giving written
notice to the Township of the grantee's election to exercise
its renewal option, which notice shall be given not less than 30 months
nor more than three years prior to the expiration of the initial term
granted hereunder. Such notice shall be either personally served or
mailed, certified or registered mail, return receipt requested, to
the Township at its administrative offices.
B.
Prior to the issuance or renewal of any franchise to operate a cable
television system within the Township, the Board shall conduct a public
hearing, to which the grantee or proposed grantee shall be a necessary
party, subject to 10 days' prior public notice advertised one time
in a newspaper of general circulation in the Township. The following
factors shall be considered in the issuance or renewal of any franchise,
and the grantee or the proposed grantee shall have the burden to demonstrate
compliance with each criteria:
(1)
Whether the grantee has or can substantially comply with the material
terms of the proposed franchise agreement, this chapter, and all other
applicable law;
(2)
Whether the quality of the grantee's service has or will be
reasonable in light of community needs;
(3)
Whether the grantee has the financial, legal and technical ability
to provide the services, facilities and equipment proposed; and
(4)
Whether the grantee's proposal is reasonable to meet the current
and future cable-related community needs and interests, including
the cost of meeting them.
C.
Any proceedings undertaken by the Township that relate to issuance
or renewal of any franchise shall be governed by and comply with the
provisions of Section 626 of the Cable Communications Policy Act of
1984, unless the procedures and substantive protection set forth therein
shall be deemed to be preempted or superseded by the provisions of
any subsequent provisions of federal or commonwealth law, which shall
then apply to any such proceeding.
D.
In addition to the procedures set forth in Section 626(a) of the Act, the Township shall notify the existing or proposed grantee of its preliminary assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of grantee under the then-current franchise agreement, if any. Such notification shall be made prior to the time that the four-month period referred to in subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary herein, at any time during the term of any then-current franchise agreement under which the grantee is operating, subject to affording the public appropriate notice and opportunity of comment, the Township, in its discretion, may agree to undertake and finalize negotiations with grantee regarding renewal of the then-current franchise agreement, and the Township may grant a renewal thereof, in its discretion.
A.
To the extent possible, all franchise facilities shall be attached
to existing poles. To the extent that existing poles are insufficient
for the operation of a franchise, or if the grantee is unable to negotiate
agreements reasonably satisfactory to grantee providing for use of
existing poles, grantee shall have the right to erect and maintain
its own poles as necessary for the construction and maintenance of
it television distribution system, subject to the issuance of applicable
road occupancy permits by the Township or the Commonwealth of Pennsylvania;
provided, however, that the approval of the Township shall not be
granted for the installation of such poles when, in the opinion of
the Township Engineer and/or Zoning Officer, the installation of such
new transmission facilities underground is feasible, or otherwise
necessary, considering engineering criteria only.
B.
All holders of public licenses and franchises within the corporate
limits of the Township shall cooperate with every grantee hereunder
to allow usage of existing poles and pole line facilities wherever
possible and wherever such usage does not interfere with the normal
operation of said pole and pole line so that the number of new or
additional poles constructed in the Township shall be minimized.
C.
Each grantee shall extend to the Township, free of any expense, joint
use of any and all poles owned by any grantee for any proper municipal
purpose insofar as may be accomplished without interference with the
use and enjoyment of the grantee's own wires and fixtures. The
Township shall hold each grantee harmless from any and all action,
causes of action or damage caused by any action of the Township in
placing wires or appurtenances upon the poles of the grantee.
D.
The rights and powers conferred upon the grantee by this chapter
shall be subject to existing or future ordinances, plans or construction
activities of the Township concerning the location of sewer and water
lines (where underground construction is used), electric and telephone
wires and cables for the conveyance of electrical energy for any purposes.
A.
All transmission and distribution structures, poles, lines, and equipment
installed or erected by the grantee within the franchise area shall
be so located as to cause no interference with the proper use of streets
and with the rights and reasonable convenience of property owners
who adjoin any of said streets. The cable television system shall
be constructed and operated in compliance with applicable governmental
construction and electrical codes. All pole installations and replacements
and all buried service in public streets or rights-of-way shall be
subject to the prior approval of the Township.
B.
The grantee shall construct, maintain, and operate its facilities
so as to cause no distortion to direct-off-the-air television signals,
and the grantee shall during the continuance of any franchise provide
facilities and service sufficient to meet the needs of it subscribers
and shall maintain its facilities and service up-to-date and in keeping
with technical progress. The grantee shall maintain, operate, and
render efficient service in accordance with any police power rules
and regulations as are or in the future may be set forth by the Board.
The system shall be installed and maintained in accordance with good
engineering practices, and any spurious electromagnetic radiation
must fall within the limits specified by the Federal Communications
Commission. All construction must be done in a good and workmanlike
manner free of obvious defects which may be hazardous to life and
limb and in conformance with the standards set forth in the National
Electric Safety Code. The grantee shall operate and maintain its cable
system in full compliance with the standards set forth by the Federal
Communications Commission and/or the Pennsylvania Public Utility Commission.
C.
In case of disturbance of any street or paved area, the grantee shall,
at its expense and in a manner approved by the Township Engineer,
replace and restore such street or paved area in as good condition
as theretofore.
D.
The grantee shall, at its expense, protect, support, temporarily
disconnect, remove from or relocate within the public right-of-way,
any property of the grantee when lawfully required by the Township
by reason of traffic conditions, public safety, street vacating, street
conditions, change or establishment of street grades, installation
of sewers, drains, gas or water pipes, or any other type of structures
or improvements by or required by the Township, but the grantee shall,
in all cases, have the right of abandonment of its property, subject
to Township ordinances.
E.
Should the Township seek to alter, improve, redevelop or refurbish
any street(s) or area presently served by the existing cable television
system, the Township shall notify the grantee of such plans. This
notice shall be issued concurrent with notification of public utility
companies, and grantee shall be invited to all preconstruction conferences.
F.
Should the Township make application to any public agency or other
funding source which provides monetary reimbursement for relocation
or replacement of existing transmission lines, power lines, or communications
facilities, etc., such application shall include a request made on
behalf of the grantee to cover costs of relocation or replacement
of the cable television system. Should said reimbursement request
to fully compensate the grantee be denied, and should the Township
and grantee be unable to agree on an acceptable method and amount
of reimbursement, then the grantee shall be released of any obligation
to provide cable service to the affected area. The grantee and the
Township may, by mutual agreement, arrange to continue to serve the
affected area and achieve appropriate reimbursement by deducting a
negotiated fixed amount from the franchise fee paid to the Township.
The fixed amount shall be specified and described in an itemized statement
of charges which shall be submitted by grantee to the Township for
approval. The Township shall not expend funds as prepayment for relocation
and shall only be required to expend actual, available Township funds
if, in the Township's discretion, total reimbursement mutually
agreed to cannot be accomplished through quarterly deductions from
the franchise fee due the Township.
G.
Whenever it shall be necessary for any grantee to raise, lower, or
temporarily remove its lines or facilities to permit the moving of
any machinery, equipment, or any building or other structure, the
grantee shall accomplish the same upon the request of any person lawfully
entitled to move same. The actual expense thereof shall be paid by
the person requesting the same, and the grantee shall have the right
to require payment in advance of the reasonably estimated costs to
be incurred; provided, however, that if any such raising, lowering,
or temporary removal shall be necessary for Township purposes and
shall be done at the request of the Township, then it shall be accomplished
by the grantee at no charge to the Township. The grantee shall be
given not less than 10 business days' advance notice to arrange
for such temporary wire changes.
H.
To the extent that the Township shall have the authority to grant
the same, and after the necessary property owner notification/approval
requirements of the Second Class Township Code, the grantee shall
have the authority, at its expense, to trim trees overhanging any
streets in the franchise area so as to prevent branches from coming
in contact with the grantee's wires and cables, except that,
at the option of the Township, such trimming may be done by it or
under its supervision and direction at the grantee's expense.
I.
Subject to any applicable commonwealth or federal regulations or
tariffs, the Township shall have the right to make additional use
for any public purpose of any poles or conduits controlled or maintained
exclusively by or for the grantee in any street, provided that:
(1)
Such use by the Township does not interfere with the use by the grantee.
(2)
The Township holds the grantee harmless against and from all claims,
demands, causes of actions, suits, actions, proceedings, damages,
costs or liabilities of every kind and nature whatsoever arising out
of such use of said poles and conduits.
(3)
This hold-harmless provision shall include, but not be limited to,
reasonable attorneys' fees and costs, and at grantee's sole discretion
the Township may be required either to pay a reasonable rental fee
or otherwise reasonably compensate grantee for use of such poles,
conduits, or equipment; provided, however, that grantee agrees that
such compensation or charge shall not exceed those paid by it to public
utilities pursuant to the applicable pole attachment agreement, or
other authorization, relating to the service area.
A.
Each grantee whose application is approved pursuant to this chapter
shall construct an all-bands system capable of providing at least
30 channels of television reception and FM radio to the grantee's
subscribers, and installation and maintenance of equipment shall be
such that standard color signals shall be transmitted to the subscribers.
B.
Each grantee shall furnish upon request, free of charge, at least
one service distribution connection to each school, fire station,
police station, Township administration building, and public library
located within the Township and along any of the grantee's transmission
line routes, and shall make available for public use in any of those
facilities no fewer than one channel.
A.
The grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries
or nuisances to the public. All such work shall be performed in substantial
compliance with applicable FCC or other federal, commonwealth, and
local regulations.
B.
Grantee shall keep all structures and all lines, equipment and connections
in, over, under and upon all public streets and rights-of-way within
the franchise area in a safe and suitable condition and in good order
and repair.
C.
All construction and maintenance activities within public streets
and rights-of-way shall include the installation of proper warning
signs in accordance with Section 203 of Pennsylvania Department of
Transportation rules and regulations on work zone traffic control.
A.
The grantee is hereby authorized to extend the system within the
franchise area to the extent that such extension is or may become
technically and economically feasible.
B.
Provided, whenever 25 or more residences are located within one linear
road mile of its aerial trunk cable, or 35 or more residences within
one linear road mile of its underground trunk cable, it shall extend
its system to such subscribers solely for the usual connection and
service fees for all subscribers. The one mile shall be measured in
extension length of grantee's cable required for service located
within the public street, right-of-way, or easement and shall not
include length of necessary drop cable to the subscriber's home
or premises.
C.
No person in the grantee's franchise area shall be arbitrarily
refused service; but in recognition of the capital costs involved
in unusual circumstances, including, without limitation, instances
when the distance from distribution cable to connection of service
to subscribers is more than 200 cable feet or when a subscriber density
exists less than the density as specified hereinabove, service may
be made available on the basis of costs of materials, labor and easements,
in order to prevent inequitable burdens on cable subscribers in more
densely populated areas.
D.
For all residential structures hereinafter erected which are to be
serviced by underground utilities, the developer of the subdivision
or development may acquire cable television service for such development
under an agreement negotiated between the grantee and such developer.
Grantee will, with due diligence and in a businesslike manner, seek
to finalize satisfactory cable television service agreements with
developers who do future construction within the Township. However,
absent such agreement(s), the grantee shall have no obligation to
serve such areas. Circumstances shall be timely reported to the Township.
E.
In addition, the grantee may provide plans and specifications to
the developer in accordance with any such agreement between the grantee
and the developer, but such plans and specifications, if agreed to
by the grantee and the developer, must then be submitted to the Township
upon request who shall have the right of review, and Township approval
of the plans and specifications shall be obtained before installation.
Unreasonable delay in Township approval or untimely Township approval
caused by Township failure or inability to act shall also free the
grantee of any obligation to provide service. Timeliness is a response
time of 90 days after receipt by the Township, unless an extension
of such time has been granted by the grantee.
F.
In those areas of the franchise area where all of the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services are currently underground,
the grantee likewise shall construct, operate and maintain all of
its transmission and distribution facilities underground, provided
that such facilities are actually capable of receiving grantee's
cable and other equipment without technical degradation of the cable
television system's signal quality. In those areas of the franchise
area where the transmission or distribution facilities of the respective
public utilities providing telephone communications and electric services
are both aerial and underground, grantee shall have the sole discretion
to construct, operate, and maintain all of its transmission and distribution
facilities, or any part thereof, aerially or underground. Nothing
contained in this section shall require grantee to construct, operate,
and maintain underground any ground-mounted appurtenances such as
subscriber taps, line extenders, system passive devices (splitters,
directional couplers), amplifiers, power supplies, pedestals, or other
related equipment. Notwithstanding anything to the contrary contained
in this section, in the event that all of the transmission or distribution
facilities of the respective public utilities providing telephone
communications and electric services are placed underground after
the effective date of this chapter, grantee shall only be required
to construct, operate and maintain all of its transmission and distribution
facilities underground if it is given reasonable notice and access
to the public utilities' facilities at the time that such are
placed underground.
A.
The grantee shall operate and maintain the cable television system
in full compliance with the standards established and mandated by
the Federal Communications Commission (FCC).
B.
The Township may perform technical tests of the cable television
system during reasonable times and in a manner which does not unreasonably
interfere with the normal business operations of the grantee or the
cable television system in order to determine whether or not the grantee
is in compliance with this chapter and applicable commonwealth or
federal laws. Such tests may be undertaken only after giving grantee
reasonable notice thereof, not to be less than five business days,
and providing a representative of grantee an opportunity to be present
during such tests. In the event that such testing demonstrates that
the grantee has substantially failed to comply with a material requirement
hereof, the reasonable costs of such tests shall be borne by the grantee.
Except in emergency circumstances, the Township agrees that such testing
shall be undertaken no more than two times a year in the aggregate,
and that the results thereof shall be made available to the grantee
upon grantee's request.
A.
Each grantee shall, at all times, be subject to such regulations
as the Township shall have in force or shall hereafter lawfully enact,
either by ordinance or resolution or otherwise; provided, however,
that nothing herein contained shall be deemed to render any grantee
a public utility except as may be otherwise provided by the laws of
the commonwealth.
B.
Notwithstanding any other provision of this chapter to the contrary,
each grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agency thereof,
provided that, if any such state or federal law or regulation shall
require or permit the grantee to perform any action or shall prohibit
grantee from performing any action in conflict with the terms of this
chapter or of any law or regulation of the Township, the obligations
expressed by the state or federal regulation shall be controlling,
and observance of these state or federal laws in conflict with this
chapter shall not violate this chapter.
A.
Whenever it is necessary to shut off or interrupt service for the
purpose of making repairs, installations or adjustments, the grantee
shall do so at such time or times as will cause the least amount of
inconvenience to its subscribers, consistent with the needs and requirements
of the grantee.
B.
The grantee shall maintain a local business office and a local telephone
service, which shall be toll-free to the caller for calls originating
from within the Township of West Vincent, for the purpose of receiving
inquiries and complaints from the grantee's subscribers and from
the general public. Each grantee shall provide sufficient maintenance
personnel to respond to routine service calls within 24 hours during
the period from 8:00 a.m. through 11:00 p.m. weekdays, except in the
case of major outages due to storms, civil unrest, or acts of God.
From 11:00 p.m. to 8:00 a.m., each grantee shall maintain a telephone
answering service and shall respond to routine service calls generated
therefrom within 24 hours of commencement of business the day following
the call. Grantee shall maintain a written record of all such calls,
which shall be available for inspection by the Township upon 48 hours'
prior oral or written request.
A.
The grantee shall maintain on file with the Township a schedule setting
forth all rates and charges to be made to subscribers for basic cable
television service, including connection and service charges. Notice
of changes in rates and charges shall be filed with the Township.
The grantee shall submit such notice of rate changes at least 30 days
prior to the effective date of the adjusted rates. The Township shall,
at its option, have the opportunity to meet with the grantee to discuss
rate adjustments, provided such meetings occur at least 15 days prior
to the effective date of said adjustments. Normal rate adjustments
will not occur more frequently than on an annual basis with the anniversary
date relative to the adjustments understood to be the beginning and
the end of this annual cycle. Intervening rate adjustments which become
necessary shall be permitted if increased operating costs are caused
by increases in copyright payments, utility pole or conduit rental,
programming charges or franchise fees. Other intervening rate adjustments
shall occur through authorization in law or through the action of
an agency of government or court of competent jurisdiction.
B.
Grantee shall have the right to charge and collect compensation from
all subscribers to whom it shall furnish service, but grantee shall
not as to rate, charges, service, facilities, rules and regulations,
or any other respect, make or grant any preference or advantage to
any person or subject any person to any prejudice or disadvantage,
but nothing herein contained shall be deemed to prohibit the establishment
of a graduated scale of charges and classified rate schedules, provided
that the classification customers shall be reasonable and any customer
coming within a particular classification shall be entitled to the
same rates as any other customer coming within that classification.
Rates shall be the same for all classifications of customers served
by grantee from similar facilities. Nothing herein contained shall
prevent any grantee from providing a preferential rate or free service
to the Township or for any other public purpose.
A.
The grantee shall pay the Township, on or before the last dates in
March, June, October, and December of each year, a franchise fee equal
to 3% of the gross subscriber revenues received for cable television
operations in the Township for the preceding calendar quarter, and
no other fee, tax, charge or consideration. By April 15 of each year,
the grantee shall provide an annual summary report showing these annual
subscriber revenues received during the preceding calendar year, together
with a certified public accountant audited financial statement, and
shall pay any unpaid franchise fee then due for such preceding year.
B.
Each grantee shall keep records of accounts showing the date and
amount of all payments received from subscribers. Any duly authorized
agent of the Township shall have the right to inspect and audit the
grantee's current records of gross subscriber revenues at any
reasonable time. The Township shall have the right, at its own expense
and at any reasonable time, to audit the records of gross subscriber
revenues of any grantee for any annual period within three years after
expiration of such annual period. If any payment as required in this
section is not made within the time required, then the time for inspection
and auditing of the records of the grantee shall be extended by the
same amount of time as the grantee is late in its payment.
C.
Nothing herein contained shall be construed as requiring any grantee
to pay to the Township any portion of the revenue derived from the
sale of its service to subscribers residing outside the corporate
limits of the Township; provided, however, that upon annexation to
the Township of any territory not now within its corporate limits,
the portion of the grantee's facilities that may be located within
such annexed territory shall thereafter be subject to all of the terms
of this chapter.
A.
The grantee shall at all times protect and hold harmless the Township,
the Board, and all Township officers, agents and employees from all
claims, actions, suits, liability, judgments, loss, expense, or damages
of every kind and description, including investigation costs, court
costs, and reasonable attorneys' fees, which may accrue to or be suffered
or claimed by any person or persons arising out of the negligence
or alleged contractual dispute of the grantee in the ownership, construction,
repair, replacement, maintenance, and operations of said cable television
system and by reason of any license, copyright, property right, or
patent of any article or system used in the construction or use of
said system. The Township shall give the grantee notice in writing
of any such claims, actions and suits, etc., without limitation, prompting
following notice received by the Township.
B.
Insurance coverage.
(1)
The grantee shall maintain in full force and effect during the term
of any franchise, public liability and property damage insurance providing
coverage to the Township as an additional named insured in the following
minimum amounts:
(2)
In addition, the grantee shall carry worker's compensation coverage
for it employees. Evidence of all such insurance coverage shall be
provided to the Township within 10 business days of the effective
date of the franchise.
C.
Any insurance company providing coverage under the provisions of
this section must be licensed to do business in the Commonwealth of
Pennsylvania and the coverage to be provided shall be subject to the
approval of the Board acting upon the opinion of the Township Solicitor.
Such insurance may contain reasonable deductible provisions not to
exceed $1,000 for any type of coverage. All investigation of claims
made by any person against the Township arising out of any use or
misuse of privileges granted to the grantee hereunder shall be made
by, or at the expense of the grantee or its insurer. The grantee may
bring its obligations to carry any insurance required hereby within
the coverage of any so-called blanket policy or policies of insurance
now or hereafter carried, by appropriate amendment, endorsement or
otherwise; provided, however, the interest of the Township shall be
as fully protected thereby as if the grantee had obtained individual
policies of insurance.
A.
Any formal inquiry, proceeding or other action taken or proposed
to be taken by the Township with respect to the operation of any existing
or proposed cable television system franchise shall be subject to
30 days' prior written notice to the franchise holder, whose
right to procedural due process shall be protected at a public hearing
of the Board.
B.
The notice required by this section shall state clearly the action
or proposed action to be taken, the time provided for a response and
the person or persons in authority to whom such response shall be
addressed, and such other procedures as may be specified by the Township.
Any such notice shall include the date, time and place of the scheduled
hearing on the proposed action, whether public participation will
be allowed, and the procedures by which such participation may be
obtained. Any grantee who is the holder or proposed holder of a franchise
which is the subject of the notice shall be a necessary party to any
such hearing.
C.
No hearing shall be held except upon 10 days' prior public notice
published at least one time in a newspaper generally circulating in
the Township. Any existing subscriber of the subject franchise holder
or any person residing within the franchise area of a proposed grantee
may become a party to the hearing by entering a formal written appearance
with the Board prior to the hearing's commencement.
A.
The rights, interests and privileges granted under any franchise
agreement shall be terminated upon any of the following conditions:
(1)
The expiration of 15 years from the effective date of the franchise agreement or renewal, as determined by § 141-6 of this chapter; or
(2)
The mutual agreement of both parties to terminate the rights and
privileges of the franchise agreement; or
(3)
Failure of the franchise holder (grantee) to perform any of the material
provisions of this chapter, or in the event of any breach of the covenants
and conditions contained herein, or for breach of the franchise agreement.
In considering termination for just cause, initiated by the Township,
the following provisions shall apply:
(a)
Notice of violation. In the event that the Township alleges
that the grantee has not complied with the material terms of this
chapter or the franchise agreement, it shall notify the grantee of
the exact nature of the alleged noncompliance.
(b)
Grantee's right to cure or respond. Grantee shall have
30 days from receipt of the notice described in this section to: (i)
respond to the Township, contesting the allegation of noncompliance;
or (ii) to cure such default or noncompliance or, in the event that,
by the nature of the default, it cannot be cured within a period of
30 days, to specifically describe and initiate reasonable steps to
remedy such default, together with the projected date of completion.
The Township may reject the grantee's proposed remedy and time
for performance in the event the same is not reasonable.
(c)
Public hearing. In the event that grantee fails to respond to
the Township's notice, or in the event that the alleged default
is not remedied within 30 days after the Township's initial notification
(or any extension agreed to by the Township for performance), the
Township shall schedule a public hearing to investigate the grantee's
default. Ten days' prior notice of the hearing shall be given
to the grantee. The hearing shall be conducted in accordance with
the Local Agency Law, with the grantee afforded the due process right
of representation and the right to be heard at the public hearing.
(d)
Enforcement. Subject to applicable federal and commonwealth
law, in the event the Township, after public hearing, determines that
the grantee is in default of its franchise agreement or any of the
provisions of this chapter, the Township may:
[1]
Foreclose on all or any part of any security provided under
this chapter, if any, including, without limitation, any bonds or
other surety; provided, however, such foreclosure shall only be in
such a manner and in such amount as the Township reasonably determines
is necessary to remedy the default;
[2]
Commence an action for equitable relief, monetary damages, or
both;
[3]
Revoke the franchise agreement and terminate the grantee's
right to operate a cable television system within the Township; or
[4]
Seek specific performance of any provision of the franchise
agreement, plus damages, if applicable.
(e)
The grantee shall not be relieved of any of its obligations
to comply promptly with any provisions of this chapter or the franchise
agreement by reason of any failure of the Township to enforce prompt
compliance. The Township's waiver of any grantee's noncompliance
or default, at any time, shall not act as a waiver of any future default;
provided, however, grantee shall not be held in default or noncompliance,
nor suffer any enforcement or penalty relating thereto, where such
is caused by strikes, acts of God, power outages, or other events
reasonably beyond its ability to control.
(f)
In the event that termination is imposed upon the grantee, grantee
shall have a period of six months within which to sell, transfer and/or
convey the cable television system to a qualified purchaser at fair
market value. During said six-month period, grantee shall be obligated
to continue its operation of the cable television system.
B.
Upon expiration or termination of its franchise, should the grantee
not have acquired an extension or renewal thereof and accepted the
same, it may have and it is hereby granted the right to enter upon
the public streets and rights-of-way or other Township property for
the purpose of removing therefrom any or all of its property, subject
to the requirement that it restore any disturbed areas to the condition
immediately preexisting such removal. As a condition precedent thereto,
the grantee shall compute and pay to the Township any and all sums
then due and owing, computed as of the effective date of the franchise
termination. All final payments shall be due within 45 days of the
termination date.
A.
The grantee shall not sell or transfer its cable television system
or facilities to another, other than an affiliate, nor transfer any
rights acquired under this chapter or specified in the franchise agreement
to another without the Board's prior written approval, following
public hearing. No sale or transfer of the grantee's assets used
in the performance of this franchise shall be effective until the
vendee, assignee or lessee has filed in the office of the Township
an instrument duly executed reciting the fact of such sale, assignment
of lease, accepting the terms of the franchise agreement and agreeing
to perform all the terms and conditions thereof. The Board's
approval shall not be unreasonably withheld, and neither this section
nor other sections of this chapter shall preclude the mortgaging,
hypothecating, or assigning of rights in the system, or the pledge
of stock by the grantee for the purpose of financing.
B.
If a renewal of grantee's franchise is denied and the Township
either acquires ownership of the cable television system or by its
actions effects a transfer of ownership of the system to another party,
any such acquisition or transfer shall be at a fair market value,
determined on the basis of the cable television system valued as an
ongoing concern. If grantee's franchise is revoked for cause
and the Township acquires ownership of the cable television system
or by its actions effects a transfer of ownership of the system to
another person, any such acquisition or transfer shall be at an equitable
price. In the event of a revocation, at grantee's request, which
shall be made in its sole discretion, grantee shall be given a reasonable
opportunity to effectuate a transfer of its cable television system
to a qualified third party at fair market value, determined on the
basis of the cable television system valued as an ongoing concern.
Until consummation of such transfer, the grantee shall continue to
operate pursuant to the terms of its prior franchise; however, in
no event shall such authorization exceed a period of time greater
than six months from the effective date of such revocation. If at
the end of that time grantee is unsuccessful in procuring a qualified
transferee or assignee of its cable television system, which is reasonably
acceptable to the Township, grantee and Township may avail themselves
of any rights they may have pursuant to federal or commonwealth law.
Grantee's continued operation of its cable television system
during the six-month period shall not be deemed to be a waiver nor
an extinguishment of any rights of either the Township or the grantee.
From and after the effective date of this chapter, it shall
be unlawful for any person to construct, install or maintain within
any public street or right-of-way in the Township or on any other
public or private property within the Township any equipment or facilities
for the transmission and distribution of audio, digital and video
impulses, including television and radio signals, through a cable
television system unless a franchise authorizing such use has first
been obtained from the Township, and unless and until such franchise
is in full force and effect. Should any person or grantee violate
any of the terms, conditions or provisions of this chapter or of a
franchise agreement, or fail to comply with any lawful provision of
any Township ordinance regulating the use by any person of the public
rights-of-way, or if any grantee should violate any other lawful rule
or regulation applicable to it, whether Township, commonwealth or
federal, and continue to violate the same for a period of 30 days
after notification in writing to desist from such violation, the grantee
may, at the Township's option, be deemed to be in default of
its franchise, and to have forfeited and annulled all of its rights
and privileges granted under this chapter and the franchise agreement,
and such franchise may be terminated by the Township.
No grantee hereunder shall engage in the business of sale or
repair of television receivers owned by its subscribers, nor shall
any grantee be responsible for the operating condition of said receiver.
Any service furnished by a grantee to a subscriber pursuant to this
chapter shall terminate at the point of connection of the grantee's
facilities to the subscriber's receiver.
