[HISTORY: Adopted by the Borough Council of the Borough of Larksville 2-18-2014 by Ord. No. 2-2014. Amendments noted where applicable.]Attachment 1 - Schedule A, List of Designated Locations for Free Drop, Outlet and Basic Cable Service
For the purpose of this ordinance, the following words and phrases shall have the meanings set forth in this section.
- The Borough of Larksville, Pennsylvania.
- BOROUGH COUNCIL
- The governing body of the Borough.
- CABLE ACT
- Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq.
- CABLE SERVICE
- The one-way transmission to subscribers of video programming, or other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. For the purposes of this definition, "video programming" is programming provided by, or generally considered comparable to programming provided by, a television broadcast station; and, "other programming service" is information that a cable operator makes available to all subscribers generally.
- CABLE SYSTEM
- Company's facility located within the Borough, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community.
- Gans Communications, L.P. d/b/a MetroCast Communications and its permitted successors.
- EFFECTIVE DATE
- The date of adoption of this ordinance by the Borough Council.
- Any reception, processing, distribution or transmission component of the cable system, including cables, conduits, converters, splice boxes, cabinets, manholes, vaults, poles, equipment, drains, surface location markers, appurtenances, fiber, and related facilities maintained by Company.
- The Federal Communications Commission.
- The rights granted to Company under this ordinance to construct and operate the cable system and to provide cable services and other services as permitted under applicable law.
- GROSS REVENUES
- All revenue collected by Company derived from the operation of the cable system to provide cable services in the Borough, less uncollected bad debt. Gross revenues shall not include amounts collected by Company for equipment rental or sales, advertising or franchise fees.
- Is any person, firm, partnership, association, corporation, company, or other legal entity.
- The surface of, and the space above and below, any public street, road, highway, freeway, lane, alley, path, court, sidewalk, parkway, or drive, or any easement or right-of-way now or later existing within the Borough.
- Any person who lawfully receives cable service.
Grant of nonexclusive authority. The Borough grants to Company the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over and under the streets, all facilities necessary or desirable for the construction, maintenance, and operation of the cable system. This franchise shall be nonexclusive, and the Borough may grant franchises to other persons. Any additional franchises shall contain the same substantive terms and conditions as this franchise and shall be competitively neutral and nondiscriminatory as compared to this or any other franchise granted by the Borough for the operation of a cable system or other wireline multichannel video distribution system. Company may use the cable system to deliver noncable services as permitted by applicable law.
State franchise. If the Commonwealth of Pennsylvania adopts a state-issued cable franchise, Company may replace this franchise with a state franchise as provided under the authorizing statute.
Rules of company. Company may promulgate rules, regulations, terms and conditions governing its business and services as reasonably necessary to enable Company to exercise its rights and perform its obligation under this ordinance.
The term of the nonexclusive franchise granted under this ordinance commences upon the effective date and shall continue for eight years, unless renewed, revoked or terminated sooner. So long as Company remains in material compliance with the provisions of this ordinance, Company, at its option, may extend the term for an additional eight years by providing written notice to the Borough no more than 24 months but not less than 12 months before expiration of the initial term; provided that such a renewal of this franchise is specifically conditioned upon a review and approval by the Borough Council at a public proceeding affording due process of the Company's qualifications and performance, the adequacy of the franchise provisions and its consistency with the rules and regulations of the FCC. The parties agree that any proceedings undertaken by the Borough that relate to the renewal of the franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act.
Location of facilities. Company shall locate all facilities so as to minimize interference with the use of the streets and with the rights and reasonable convenience of adjacent property owners.
Construction codes and permits. Company shall obtain all necessary permits and shall comply with all ordinances of general applicability before commencing any construction, upgrade or extension of the cable system, including the opening or disturbance of any street.
Repair of streets and property. Company, at its expense, shall promptly restore any street or public property damaged by Company during the construction, repair, maintenance or reconstruction of the cable system.
Public projects. After reasonable prior notice, Company, at its expense, shall relocate its facilities as required by the Borough due to traffic conditions, public safety, street construction, or other public improvements by the Borough. In requiring Company to protect, support, temporarily disconnect, relocate or remove any portion of its property, the Borough shall treat Company the same as, and require no more of Company, than any other similarly situated utility. Company shall have the right to seek reimbursement from the Borough, under any applicable insurance or government program for reimbursement.
Building movement. Upon request of any person holding a moving permit issued by the Borough and after reasonable prior notice, Company shall temporarily move its facilities to permit the moving of buildings. Company may require the requesting person to pay all costs related to the temporary relocation of facilities, and may require payment in advance.
Tree trimming. Company may trim any trees in or overhanging the streets, alleys, sidewalks, or public easements of the Borough as necessary to protect Company's facilities.
Technical standards. Company shall operate the cable system in compliance with all applicable technical standards promulgated by the FCC.
Safety requirements. Company shall employ ordinary care and shall maintain in use commonly accepted methods and devices to reduce failures and accidents.
System maps. Upon request by the Borough, Company shall make available to Borough representatives for review at Company's office up-to-date as-built maps showing locations of all facilities in the streets.
System maintenance. When feasible, Company shall schedule cable system maintenance to minimize service interruptions.
Company shall provide cable services without discrimination to all persons residing within 300 aerial feet or 150 underground feet of the cable system who request cable services and who comply with Company's terms and conditions of service. Company shall extend the cable system to contiguous areas of the Borough not currently served by the cable system when any such area reaches a household density equal to or greater than 30 households per cable mile. Company is generally not obligated to extend service to residences beyond 300 aerial feet or 150 underground feet from Company's facilities. Isolated residences requiring more than a standard three-hundred-foot aerial drop or one-hundred-fifty-foot underground line may be provided at a premium installation rate if such service has been requested by the resident. Company may request advanced payment for such installation.
Company shall provide upon request and free of charge one service drop and basic cable service to the public schools and municipal buildings listed on Schedule A.
Editor's Note: Said schedule is included as an attachment to this chapter.
Subscriber inquiries. Company shall have a publicly listed toll-free telephone number and be operated so as to receive subscriber complaints and requests during normal business hours. Company shall investigate and promptly resolve customer complaints regarding quality of service or service outages.
Changes to rates or cable services. Company shall provide subscribers and the Borough with notice of changes to cable services or rates in accordance with FCC rules and regulations.
Company shall pay to the Borough an annual franchisee fee in an amount equal to 5% of gross revenues. Franchise fee payments to the Borough shall be computed at the end of each semiannual period (January 1 to June 30 and July 1 to December 31) and shall be due and payable on or before the end of the first month after such semiannual period (July 31 for the first semiannual period noted above and January 31 for the second semiannual period noted above). The franchise fee shall be prorated for any partial semiannual period. Following reasonable prior notice, the Borough may inspect Company's books, records, and reports to verify franchise fee calculations and payments.
Each of the foregoing insurance policies shall contain a statement that the insurer will not cancel the policy or fail to renew the policy for any reason without first giving notice in accordance with the terms of the policy. In addition, in the event that the insurer does not provide such notice directly to the Borough, Company agrees to provide the Borough with as much advance written notice as is reasonably practicable in the event that any such insurer provides Company with notice that it intends to cancel the policy or fail to renew the policy for any reason.
Indemnification. During the term, Company shall indemnify and hold harmless the Borough, its officers, agents and employees ("indemnitees") from and against any claims, liabilities, damages, losses, and expenses (including, without limitation, reasonable attorney fees) ("losses"), which may arise out of Company's construction, installation, operation or maintenance of the cable system, unless such losses arise from the negligence or intentional misconduct of the Borough, its officers, agents or employees.
Company shall not transfer or assign its rights granted under this ordinance without providing prior written notice to the Borough. Prior notice shall not be required for the following: the assignment of, or the granting of a security interest in, the franchise or the cable system for the purpose of securing indebtedness; or the assignment or transfer of the franchise or the cable system to an affiliate under common ownership or control with Company.
The Borough and Company may extend the term by mutual agreement, and the existing terms and conditions of this ordinance shall govern the extended term.
The Borough may terminate the franchise granted under this ordinance in case of material noncompliance by Company. Material noncompliance shall include:
A material violation by Company of any term, condition, or provision of this ordinance that remains uncured within the applicable cure period;
Failure of Company to comply with any reasonable, material provision of any applicable ordinance;
Company becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, or there is a notice of prospective foreclosure or other judicial sale of all or a substantial part of the cable system;
Company abandons the cable system; or
Company fails to operate the cable system for a period of 30 days.
If the Borough seeks to terminate the franchise under § A551-13, the Borough shall follow the procedures in this section.
Notice of complaint. The Borough shall provide Company with written notice describing with reasonable specificity the alleged noncompliance.
Opportunity to cure. Company shall have 60 days from receipt of written notice to cure the alleged noncompliance. If Company cures the alleged noncompliance within the sixty-day period, the Borough shall provide Company with written notice withdrawing the complaint.
Public hearing. If Company fails to cure the alleged noncompliance within the sixty-day cure period, or if Company provides the Borough with written notice disputing the complaint, and the parties fail to otherwise resolve the matter, the Borough shall schedule a public hearing on the alleged noncompliance. At the public hearing, Company may present testimony, cross-examine witnesses and deliver to the Borough Council all evidence relevant to Company's defense. At the conclusion of the public hearing, the Borough Council may dismiss the complaint, defer action, order appropriate sanctions, or terminate the franchise in accordance with this section.
Termination. The Borough may, after a duly noticed public hearing, terminate the franchise for material and willful continuing noncompliance by Company. If Company contests the termination in a court of competent jurisdiction, Company may operate the cable system in accordance with this ordinance while the case is pending.
Removal of facilities. Upon expiration or termination of the franchise, Company shall be afforded a six-month period to sell or otherwise dispose of the cable system. During the six-month period, Company shall operate the cable system in accordance with this ordinance. At the expiration of the six-month period, Company has the right to remove its facilities within a reasonable time.
It shall be unlawful for any person without Company's consent to willfully tamper with, remove or injure any of Company's facilities.
It shall be unlawful for any person to make or use any unauthorized connection to any part of Company's cable system.
Any person that violates this subsection regarding theft of service shall be guilty of a misdemeanor and punished by a fine not to exceed $500 for each occurrence or imprisonment for a term not to exceed 90 days or both, such fine and imprisonment as may be imposed by a court of competent jurisdiction.
Notices under this ordinance shall be in writing and shall be deemed given delivery by hand delivery, certified mail return receipt requested, or overnight courier to the following addresses:
Larksville Borough Municipal Building
211 East State Street
Larksville, PA 18704-1096
Attn: Borough Clerk
Gans Communications, L.P. d/b/a MetroCast Communications
911 Market Street
Berwick, PA 18603
Attn: General Manager
With copy to:
Gans Communications, L.P. d/b/a MetroCast Communications
70 East Lancaster Avenue
Frazer, PA 19355
Attn: General Counsel
A party may designate other addresses for providing notice by providing notice in writing of such addresses.
Severability. If any provision of this ordinance is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this ordinance. The invalidity of any portions of this ordinance shall not abate, reduce, or otherwise affect any consideration or other obligation required by Company under the remaining provisions of this ordinance.
Complete agreement. All ordinances and parts of ordinances in conflict with this ordinance are repealed as of the effective date of this ordinance, excluding all public utility franchises granted to public utilities (including utilities regulated by the Pennsylvania Public Utility Commission).
Force majeure. Company shall not be held in default under, or in noncompliance with, the provisions of this ordinance, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Company to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor utility poles to which the Company's cable system is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. Furthermore, the parties hereby agree that it is not the Borough's intention to subject the Company to penalties, fines, forfeitures or revocation of the franchise for violations of the agreement where the violation was a good faith error that resulted in no or minimal negative impact on the subscribers, or where strict performance would result in practical difficulties and hardship to the Company which outweigh the benefit to be derived by the Borough.
Entire agreement. This agreement constitutes the entire agreement between the Company and the Borough. Amendments to this agreement shall be mutually agreed to in writing by the parties, unless otherwise expressly provided herein.
Governing law. This agreement and the rights of the parties under it will be governed by and construed in all respects in accordance with the laws of the Commonwealth of Pennsylvania without regard to principles of conflicts of law.
This ordinance shall become effective upon adoption by the Borough and acceptance by Company. Company shall notify the Borough of Company's acceptance of this ordinance within 30 days of receipt of notice of adoption by the Borough. The Borough may revoke this ordinance if Company fails to provide timely notice of acceptance by providing notice to Company within 30 days after such failure.