[HISTORY: Adopted by the Borough Council of the Borough of
Larksville 2-18-2014 by Ord. No.
2-2014. Amendments noted where applicable.]
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.
The governing body of the Borough.
Title VI of the Communications Act of 1934, as amended, 47
U.S.C. § 521 et seq.
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.
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.
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.
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.
The term of this franchise as set forth in § A551-3.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
Technical standards. Company shall operate the cable system in compliance
with all applicable technical standards promulgated by the FCC.
B.
Safety requirements. Company shall employ ordinary care and shall
maintain in use commonly accepted methods and devices to reduce failures
and accidents.
C.
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.
D.
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.[1]
[1]
Editor's Note: Said schedule is included as an attachment
to this chapter.
A.
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.
B.
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.
A.
Insurance.
(2)
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.
B.
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.
A material violation by Company of any term, condition, or provision
of this ordinance that remains uncured within the applicable cure
period;
B.
Failure of Company to comply with any reasonable, material provision
of any applicable ordinance;
C.
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;
D.
Company abandons the cable system; or
E.
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.
A.
Notice of complaint. The Borough shall provide Company with written
notice describing with reasonable specificity the alleged noncompliance.
B.
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.
C.
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.
D.
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.
E.
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.
A.
It shall be unlawful for any person without Company's consent
to willfully tamper with, remove or injure any of Company's facilities.
B.
It shall be unlawful for any person to make or use any unauthorized
connection to any part of Company's cable system.
C.
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.
A.
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:
(1)
To Borough:
|
Larksville Borough Municipal Building
211 East State Street
Larksville, PA 18704-1096
Attn: Borough Clerk
|
(2)
To Company:
|
Gans Communications, L.P. d/b/a MetroCast Communications
911 Market Street
Berwick, PA 18603
Attn: General Manager
|
(3)
With copy to:
|
Gans Communications, L.P. d/b/a MetroCast Communications
70 East Lancaster Avenue
Frazer, PA 19355
Attn: General Counsel
|
B.
A party may designate other addresses for providing notice by providing
notice in writing of such addresses.
A.
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.
B.
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).
C.
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.
D.
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.
E.
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.
