[HISTORY: Adopted by the Borough Council of the Borough of
Chalfont 10-21-1997 by Ord. No.
304-A (Ch. 13, Part 2, of the 2010 Code of Ordinances).
Amendments noted where applicable.]
GENERAL REFERENCES
Rights-of-way — See Ch. 316.
The Borough of Chalfont finds that the development of cable
television and communications systems has the potential of having
great benefit and impact upon the people of Chalfont. Because of the
complex and rapidly changing technology associated with cable television,
the Borough further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers
which should be vested in the Borough or such persons as the Borough
shall designate. It is the intent of this chapter and subsequent amendments
to provide for and specify the means to attain the best possible public
interest and public purpose in these matters, and any franchise issued
pursuant to this chapter shall be deemed to include this finding as
an integral part thereof. Further, it is recognized that cable communications
systems have the capacity to provide not only entertainment and information
services to the Borough's residents, but can provide a variety
of broadband, interactive communications services to institutions
and individuals. Many of these services involve Borough agencies and
other public institutions by providing governmental, educational or
health care communications. For these purposes, the following goals
underlie the regulations contained herein:
A.
Communications services should be provided to the maximum number
of Borough residents.
B.
The system should be capable of accommodating both the present and
reasonably foreseeable future cable communications needs of the Borough.
C.
The system should be improved and upgraded during the franchise term
so that the new facilities necessary for the operation of this system
shall be integrated to the maximum extent possible with existing facilities.
D.
The cable communications system authorized by this chapter shall
be responsive to the needs and interests of the local community and
shall provide a wide diversity of information sources and services
to the public.
This chapter shall be known and may be cited as the "Chalfont
Cable Communications Regulatory Ordinance," and it shall become part
of the ordinances of the Borough.
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
include the future; words in the plural number include the singular
number. The word "shall" is mandatory, and "may" is permissive. Words
not defined shall be given their common and ordinary meaning.
A separately available basic service tier to which subscription
is required for access to any other tier of service. Such basic tier
shall, at a minimum, consist of the following: all signals carried
in fulfillment of Cable Act Sections 614 and 615,[1] any public educational and governmental access programming
required in this chapter or the franchise, any signal of any television
broadcast station that is provided by the cable operator to any subscriber,
except a signal which is secondarily transmitted by a satellite carrier
beyond the local service area of such station. Additional signals
may be added to the basic tier by the grantee.
A nonbroadcast signal that originates within the facilities
of the cable communications system.
Also referred to as "system," means a facility consisting
of a set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide cable
service which includes video programming and which is provided to
multiple subscribers within a community, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations.
A facility that serves only subscribers in one or more multiple-unit
dwellings under common ownership, control or management, unless such
facility or facilities uses any public rights-of-way.
A facility of a common carrier which is subject, in whole or
in part, to the provision of Title II of the Cable Act, except that
such facility shall be considered a cable system to the extent such
facility is used in the transmission of video programming directly
to subscribers.[2]
Any facilities of any electric utility used solely for operating
its electric utility systems.
A six-megahertz (MHz)-frequency band, which is capable of
carrying either one standard video signal, a number of audio, digital
or other nonvideo signals or some combination of such signals. One
channel of high-definition television will utilize more than six MHz.
Noncommercial video, audio, data and other services provided
to institutional users on an individual application basis. These may
include, but are not limited to, one-way video, two-way video, audio
or digital signal among institutions.
A subscriber who receives a service in a place of business
where the service may be utilized in connection with a business, trade
or profession.
The Commonwealth of Pennsylvania.
A verbal or written indication from a subscriber within the
Borough of a problem that generates a work order by the grantee or
complaint to the Borough that is communicated to the grantee with
any aspect of cable service.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and any channel selector which permits a subscriber
to view all signals delivered at designated converter dial locations
at the set or by remote control.
The Borough Council of the Borough of Chalfont.
Cable communications channels dedicated to noncommercial
use by the Borough, county, commonwealth or federal governmental agencies
and public and nonprofit, private educational institutions.
A channel which can only be received by the person and/or
institution intended to receive signals on such channel.
A coaxial connection from feeder cable to the subscriber/user
television set, radio or other terminal.
Any channel designated for noncommercial educational access
use.
The price that a willing buyer would pay to a willing seller
for a going concern based on the system valuation prevailing in the
industry at the time.
The Federal Communication Commission and any legally appointed
successor.
The nonexclusive rights granted by separate agreement pursuant
to this chapter to construct, operate and maintain a cable communications
system along the public ways within all or a specified area in the
Borough. Any such authorization, in whatever form granted, shall not
mean or include any license or permit required for the privilege of
transacting and carrying on a business within the Borough as required
by other ordinances and laws of the Borough.
The entire Borough, or portions thereof, for which a franchise
is granted under the authority of this chapter. If not otherwise stated
in the franchise, the franchise area shall be the corporate limits
of the Borough, including all territory thereafter annexed to the
Borough.
The natural person(s), partnership(s), domestic and foreign
corporation(s), association(s), joint venture(s) or organization(s)
of any kind which has been legally granted a franchise by the Borough
and its lawful successor, transferee or assignee.
The percentage, as specified by the Borough, of the franchisee's
gross revenues from the operation of the cable system in exchange
for the rights granted pursuant to this chapter and the franchise
agreement.
Any channel specifically designated or dedicated for noncommercial
government access use.
The Borough of Chalfont as represented by the Borough Council
acting within the scope of its jurisdiction.
All revenue derived directly or indirectly by the grantee
from the operation of the cable communications system within the Borough.
Revenues derived from the operation of the cable system received by
any affiliate, subsidiary or any person in which the grantee has a
financial interest shall be included in the grantee's gross revenues
in any case where those revenues were derived by the affiliate, subsidiary
or person in which the grantee has a financial interest to avoid or
reduce the grantee's franchise fee obligation.
The connection of the system from feeder cable to subscribers'
terminals.
Any channel designated or dedicated for use by persons unaffiliated
with the grantee.
Observing a communications signal, or the absence of a signal,
where the observer is not a party to the communication, whether the
signal is observed by visual or electronic means, for any purpose
whatsoever.
The ability to distribute cable programming to a particular
segment or segments of the cable subscribers.
Access channel use in a manner similar to public broadcasting
service station programming and underwriting acknowledgments.
An individual, partnership, association, organization, corporation
or any lawful successor transferee of said individual, partnership,
association, organization or corporation.
A linear mile of cable as measured on the street or easement
from pole to pole or pedestal to pedestal.
Any channel designated or dedicated for noncommercial use
by the general public or noncommercial organizations which is made
available for use without charge on a nondiscriminatory basis in accordance
with the rules and regulations specified in the franchise.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, parkways, utility easements
or other public right-of-way now or hereafter held by the Borough
which shall entitle the Borough and the grantee to the use thereof
for the purpose of installing and maintaining the grantee's cable
television system. No reference herein, or in any franchise, to the
public way shall be deemed to be a representation or guarantee by
the Borough that its title to any property is sufficient to permit
its use for such purpose, and the grantee shall, by its use of such
terms, be deemed to gain only such rights to use property in the Borough
as the Borough may have the undisputed right and power to give.
Written notice addressed to the grantee at its principal
office within the Borough or such other office as the grantee has
designated to the Borough as the address to which notice shall be
transmitted to it, which notice shall be certified and postmarked
not less than 10 calendar days prior to that day in which the party
giving such notice shall commence any action which requires the giving
of notice. In computing said 10 calendar days, holidays recognized
by the Borough shall be excluded.
Any person residing in the Borough as otherwise defined by
applicable law.
A subscriber who receives a service in an individual dwelling
unit where the service is not to be utilized in connection with a
business, trade or profession.
Any sale, exchange, barter or offer for sale.
Any public or nonprofit, private educational institution,
including primary and secondary schools, colleges and universities.
The entire geographic area within the franchise territory.
The cable communications system constructed for use within
the Borough, without limitation, the headend, antenna, cables, wires,
lines, towers, amplifiers, converters, health and property security
systems, equipment or facilities located within the corporate limits
of the Borough, designed, constructed or wired for the purpose of
producing, receiving, amplifying and distributing, by coaxial cable,
fiber optics, microwave or other means, audio and visual, radio, television
and electronic signals to and from subscribers in the Borough, and
any other equipment or facilities located within the corporate limits
of the Borough intended for the use of the system; provided, however,
such system facility excludes buildings, contracts, facilities and
equipment where the primary use is for providing service to other
system facilities located outside the Borough limits.
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, unless
otherwise exempted herein.
The major distribution cable used in cable communications,
which divides into feeder lines which are tapped for service to subscribers.
A signal originating from a terminal to the cable system
headend, including video, audio or digital signals for either programs
or other uses such as security alert services, etc.
A person or organization utilizing channel or equipment and
facilities for the purpose of producing and/or transmission of material,
as contracted with receipt thereof in a subscriber capacity.
A.
Grant.
(1)
Grant. In the event that the Borough shall grant to the grantee a
nonexclusive, revocable franchise to construct, operate and maintain
a cable communications system within the Borough, 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 Borough and grantee.
(2)
Event of conflict. The franchise shall be granted under the terms
and conditions contained herein, consistent with the Borough's
Charter and/or other 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 Borough can grant
a franchise, the Charter and/or statutory requirements shall control.
(3)
General Borough ordinances. Any franchise granted by the Borough
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 Borough regarding permits, fees to be paid or manner of construction.
B.
Franchise area. The franchise area shall be the entire Borough, or
portions thereof, for which a franchise is granted.
C.
Use of public rights-of-way. For the purpose of operating and maintaining
a cable communications system in the Borough, 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 Borough 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 the grantee complies
with all design, construction, safety and performance provisions contained
in this chapter, the franchise agreement and other applicable local
ordinances.
D.
Use of Borough facilities. In the event that a grantee chooses to
utilize Borough-owned conduit or other facilities for any portion
of its cable communications system, the consideration for the use
of Borough conduit or other facilities shall be at charges to be agreed
upon between the parties.
E.
Use of grantee facilities. No poles or pedestals shall be erected
by the grantee without prior approval of the Borough 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 Borough determines that the public convenience would
be enhanced thereby. The grantee shall utilize existing poles and
conduits, where possible. The Borough 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 Borough
shall reimburse the grantee for any make-ready costs. The use of the
grantee's poles shall be at a fair and reasonable rate.
F.
Franchise required. No cable communications system shall be allowed
to occupy or use the streets of the Borough or be allowed to operate
without a franchise.
G.
Term of franchise. The term of any franchise granted pursuant to
this chapter shall be stated in the franchise.
H.
Franchise nonexclusive. Any franchise granted pursuant to this chapter
shall be nonexclusive. The Borough specifically reserves the right
to grant at any time such additional franchises for a cable communications
system as it deems appropriate and/or build, operate and own such
cable communications system or systems as it deems appropriate. Subject
to applicable law and regulation, any additional cable communications
system franchises granted by the Borough 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 Borough and to hold the Borough 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 franchising authority liability)[1] or by any other provision of law.
[1]
Editor's Note: See 47 U.S.C. § 555a.
I.
Time is of the essence of this part. Whenever the agreement shall
set forth any time for an act to be performed by or on behalf of the
grantee or the Borough, such time shall be deemed of the essence,
and any failure of the grantee or the Borough to perform within the
time allotted shall be sufficient ground for the other party to invoke
an appropriate penalty, including possible revocation of the franchise,
subject to force majeure.
J.
Law governs. In all controversy or dispute under this chapter, the
law of the Commonwealth of Pennsylvania shall apply.
K.
Transfer of ownership or control.
(1)
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 prior consent of the Borough. The Borough 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.
(2)
Transfer threshold. The grantee shall promptly notify the Borough
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 interest 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 the grantee, provided that prior to such transfer, the grantee
provides to the Borough 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.
(3)
Borough approval. Every change, transfer or acquisition of control
of the grantee shall make the franchise subject to cancellation, unless
and until the Borough 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 Borough may inquire into the legal, financial, character,
technical and other public interest qualifications of the prospective
controlling party and the grantee shall provide the Borough with all
required information relevant to said inquiry. Failure to provide
all information requested by the Borough as part of said inquiry shall
be grounds for denial of the proposed change, transfer or acquisition
of control.
(4)
Assumption of control. The Borough 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 Borough that it or its designees satisfactory
to the Borough 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 Borough 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 Borough finds that such transfer,
after considering the legal, financial, character, technical and other
public interest qualification of the applicant, is satisfactory, the
Borough will transfer and assign the rights and obligations of such
franchise as in the public interest. The consent of the Borough to
such transfer shall not be unreasonably withheld.
(5)
No waiver of Borough property rights. The consent or approval of
the Borough to any transfer of the grantee shall not constitute a
waiver or release of the rights of the Borough 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.
(6)
Transfer time periods. The Borough 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 Borough are made by the transferee.
(7)
Disclosure of purchase price. The Borough reserves the right to require
the grantee and transferee to disclose the purchase price of any transfer
or assignment of the cable system.
(8)
Signatory requirement. Any approval by the Borough of transfer of
ownership or control shall be contingent upon the prospective controlling
party becoming a signatory to the franchise.
(9)
Time frame for Borough review. The Borough 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 Borough. If the Borough fails to render
a final decision on the request within 120 days, such request shall
be deemed granted, unless the requesting party and the Borough agree
to an extension of time.
L.
Franchise renewal. Upon completion of the term of any franchise granted
under this chapter, the Borough may grant or deny renewal of the franchise
of the grantee in accordance with the provisions of the Cable Act.[2] The grantee shall own the cable communications 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.
[2]
Editor's Note: See 47 U.S.C. § 521 et seq.
M.
Police powers.
(1)
Police powers. In accepting the franchise, the grantee acknowledges
that its rights hereunder are subject to the police power of the Borough
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 Borough pursuant to such
power.
(2)
Conflicts. Any conflict between the provisions of this chapter or
the franchise and any other present or future lawful exercise of the
Borough'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 the grantee or cable communications
systems which contains provisions inconsistent with this chapter or
the franchise shall prevail only if, upon such exercise, the Borough
finds an emergency exists constituting a danger to health, safety,
property or general welfare and such exercise is mandated by law.
N.
Franchise fees.
(1)
Because the Borough finds that:
(a)
The streets of the county, commonwealth and Borough 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 Borough at great expense
to its taxpayers.
(b)
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 acquisition.
(c)
The administration of this chapter and the franchise imposes
upon the Borough additional regulatory responsibility and expense.
(d)
A grantee of any franchise hereunder shall pay to the Borough
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 Borough 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.
(2)
Franchise fee in addition to other tax or payment. The Borough believes
that payment of the franchise fee made by the grantee to the Borough
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 government
or other taxing jurisdiction by the grantee.
(3)
Acceptance by the Borough. No acceptance of any payment by the Borough
shall be construed as a release or as an accord and satisfaction of
any claim the Borough 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.
(4)
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, the 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 Borough primary depository bank
during the period that such unpaid amount is owed.
(5)
Payments to be made quarterly. The franchise fee and any other cost
or damage assessed against the grantee shall be payable quarterly
to the Borough of Chalfont. 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 Borough no
later than 45 days following the expiration of each calendar quarter
ending March 31, June 30 and September 30, and no later than 90 days
after the calendar quarter ending December 31.
(6)
The Borough's right of inspection. The Borough 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 Borough, unless
the audit reveals an underpayment of more than 5% in the amount of
the franchise fee due to the Borough, in which event the cost of the
audit shall be borne by the grantee. Any additional amount due the
Borough as a result of the audit shall be paid within 30 days following
written notice to the grantee by the Borough, which notice shall include
a copy of the audit report.
O.
Forfeiture or revocation.
(1)
Grounds for revocation. The Borough 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 represent a default and breach under this chapter and the
franchise grant:
(a)
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 Borough and the grantee.
(b)
If the grantee shall fail to provide or maintain in full force
and effect the liability and indemnification coverage or the performance
bond as required herein.
(c)
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.
(d)
If the grantee practices any fraud or deceit upon the Borough
or cable subscribers.
(e)
The grantee's construction schedule is delayed 180 days
beyond the schedule contained in the franchise or beyond any extended
date set by the Borough.
(f)
The grantee becomes insolvent, unable or unwilling to pay its
debt 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 Borough.
(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.
(2)
Effect of circumstances beyond control of the 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.
(3)
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.
(4)
Procedure prior to revocation.
(a)
The Borough 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 Borough shall place its request
for termination of the franchise upon a regular Council meeting agenda.
The Borough shall cause to be served upon such grantee, at least seven
days prior to the date of such Council 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 Borough Manager
or his designee, at least once, seven days before such meeting in
a newspaper of general circulation within the Borough.
(b)
The Council 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.
(c)
If such failure, refusal or neglect by the grantee was with
just cause, as reasonably determined by the Borough, the Council shall
direct the grantee to comply within such time and manner and upon
such terms and conditions as are reasonable.
(d)
If the Council shall determine such failure or neglect by the
grantee was without just cause, then the Council shall, by resolution,
declare that the franchise of the grantee shall be terminated, unless
there is compliance by the grantee within 90 days.
(5)
Disposition of facilities. In the event a franchise expires and is
not renewed or extended, is revoked or otherwise terminated, the Borough
may, in its sole discretion, do any of the following:
(b)
Effect a transfer of ownership of the system to another party.
(c)
Order the removal of all or a portion of the system facilities
as required by the Borough within a reasonable period of time as determined
by the Borough, 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.
(6)
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 Borough shall inspect
and approve the condition of the public ways and public places and
cables, wires, attachments and poles after removal. The liability,
indemnity, issuance 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.
(7)
Restoration by Borough; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsections C and E and/or Subsection O(6) above, or any other work required by Borough law or ordinance within the time as may be established and to the satisfaction of the Borough, the Borough may cause such work to be done, and the grantee shall reimburse the Borough the cost thereof within 30 days after receipt of an itemized list of such costs, or the Borough may recover such costs through the performance bond provided by the grantee. The Borough shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
(8)
Extended operation. Upon either the expiration and nonrenewal or
revocation of a franchise, the Borough 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
systems 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 Borough shall be permitted
to seek legal and equitable relief to enforce the provisions of this
section.
P.
Receivership and foreclosure.
(1)
Termination by insolvency. The franchise granted hereunder shall,
at the option of the Borough, 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:
(a)
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 Council.
(b)
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.
(2)
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 Borough
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:
Q.
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.
The 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.
R.
Notices. All notices from the grantee to the Borough pursuant to
this chapter and the franchise shall be to the Borough Manager or
his/her designee. The grantee shall maintain with the Borough, throughout
the term of the franchise, an address for service of notices by mail.
The 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 Borough of such address(es)
and telephone numbers and any changes thereof.
S.
Failure of Borough 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 Borough upon any one or more occasions to insist upon
or to seek compliance with any such terms or conditions.
T.
Rights reserved to the grantor.
(1)
Right to purchase of the system by the Borough upon termination or
expiration of the franchise.
(a)
Right to purchase.
[1]
In the event:
[a]
The grantee forfeits and the Borough terminates
the franchise for cause, pursuant to provision of this chapter and
the franchise; or
[b]
The franchise is not renewed at or following the
normal expiration of the franchise term, the Borough 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.
[2]
Any such acquisition or transfer shall be as specified in the
Cable Act.[3] The Borough 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.
[3]
Editor's Note: See 47 U.S.C. § 521 et seq.
(b)
Arbitration. In the event the Borough and grantee are unable
to agree upon the value of the cable communications system, either
party may require written notice to the other that the value of the
cable communications system be submitted to arbitration in the following
manner:
[1]
The Borough 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.
[2]
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.
[3]
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)(b)[1], 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 Borough 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:
[a]
A party fails to select an arbitrator.
[b]
The arbitrators fail to select a third arbitrator.
[c]
One or more arbitrators is unqualified.
[d]
Designated time limits have been exceeded.
[e]
The panel has not proceeded expeditiously.
[f]
The decision was procured by corruption, fraud
or undue means.
[g]
There was evident partiality on the part of one
or more of the arbitrators.
[h]
The arbitration panel exceeded its authority hereunder.
[i]
Based upon the record, the panel abused its discretion.
(2)
Right of inspection of records. Upon reasonable advance notice, the
Borough 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 Borough, including, but
not limited to, records where information is not available on a franchise-area
basis. The grantee shall provide such information in such form as
may be required by the Borough for said records.
(3)
Right of inspection of construction. The Borough 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,
and 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 Borough.
(4)
Right of inspection of property. At all reasonable times, the grantee
shall permit examination by any duly authorized representative of
the Borough of system facilities together with any appurtenant property
of the grantee situated within or without the Borough.
(5)
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 herein, the Borough 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 Borough within six months of
receipt of a written notice from the Borough.
(6)
Expense reimbursement to Borough. Unless otherwise provided in the
franchise agreement, the grantee shall pay the Borough 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 agreement, including, but not
limited to, consultant fees, attorneys' fees, publication fees, travel
expenses and all other direct costs; provided, however, that the Borough
shall submit a detailed schedule of all such costs. Such payment shall
be made within 30 days after the Borough furnishes the grantee with
a written statement of such initial franchise expenses.
[Amended 12-18-2001 by Ord. No. 326]
A.
Regulatory authority.
(1)
Ongoing regulation. The Borough shall exercise appropriate regulatory
authority under the provisions of this chapter and applicable law.
This authority shall be vested in the Borough Council and administered
through the Borough 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 Borough's
responsibilities with regard to cable communications.
(2)
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
governments. 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 Borough under this chapter or the
franchise, or 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 Borough, then the Borough,
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 Borough in the development of alternate
provisions which shall fairly restore the Borough to the maximum level
of authority and power permitted by law. The Borough 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.
(3)
Authority. The Borough 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 Borough,
the Borough 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.
B.
Supervision of the franchise.
(1)
The Borough shall have the following regulatory responsibility:
(a)
Administration and enforcement of the provisions of this chapter
and any franchise granted hereunder.
(b)
Award, renewal, extension or termination of a franchise pursuant
to the provisions of this chapter, the franchise and other applicable
law.
(c)
Consent prior to sale or transfer of any franchise granted hereunder.
(d)
Performance evaluation.
(e)
Rate regulation, if applicable.
(2)
The Borough also reserves the right to perform the following functions:
(a)
Develop objectives and coordinate activities related to the
operation of government channels.
(b)
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.
(c)
Coordinate plans for expansion, interconnection and growth of
cable services.
(d)
Analyze the possibility of integrating cable communications
with other Borough, state or regional telecommunications networks.
(e)
Formulate and recommend long-range telecommunications policy
for the Borough 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 the 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 the 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 ensure compliance with this chapter and the franchise.
(l)
Assure continuity in service.
(m)
Receive for examination all data and reports required by this
chapter.
C.
Rates and charges.
(1)
Schedule filings. The grantee shall file with the Borough 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. The grantee shall notify subscribers, in writing, at least
30 days prior to the implementation of any change in services offered,
rates charges or terms and conditions related thereto.
(2)
Nondiscriminatory rates. The 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:
(3)
Borough regulation. To the extent that federal or commonwealth law
or regulation may now, or as the same may hereafter be amended to,
authorize the Borough to regulate the rates for any particular service
tiers, service packages, equipment or any other services provided
by the grantee, the Borough 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 Borough.
D.
Performance evaluation.
(1)
Evaluation sessions. The Borough and the grantee may, at the discretion
of the Borough, hold scheduled performance evaluation sessions every
three years. All such evaluation sessions may be open to the public.
(2)
Special sessions. Special evaluation sessions may be held at any
time during the term of the franchise at the request of the Borough.
(3)
Public hearings. All evaluation sessions may be open to the public and announced in a newspaper of general circulation in accordance with public notice, as provided in § 162-10A. The grantee shall notify subscribers of any such public meetings by announcement on the designated local government channel on the system between 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.
(4)
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
extension.
(5)
Cooperation by grantee. During the review and evaluation by the Borough,
the grantee shall fully cooperate with the Borough and shall provide
such information and documents as the Borough may need to reasonably
perform its review.
E.
Penalties. Any person who violates or permits a violation of this
chapter shall, upon conviction in a summary proceeding under the Pennsylvania
Rules of Criminal Procedure, be guilty of a summary offense and shall
be punishable by a fine of not more than $1,000, plus court costs
and reasonable attorney's fees incurred by the Borough in the enforcement
proceedings. Upon judgment against any person by summary conviction,
or by proceedings by summons on default of the payment of the fine
or penalty imposed and the costs, the defendant may be sentenced and
committed to the Borough correctional facility for a period not exceeding
10 days or to the county correctional facility for a period not exceeding
30 days. Each day that such violation exists shall constitute a separate
offense, and each section of this chapter that is violated shall also
constitute a separate offense. In addition to or in lieu of enforcement
under this section, the Borough may enforce this chapter in equity
in the Court of Common Pleas of Bucks County.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
Construction bond and performance bond.
(1)
Performance bond. Upon the effective date of the franchise, the grantee
shall obtain and maintain during the entire term of the franchise
and any extension and renewals thereof, at its cost and expense, and
file with the Borough 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.
(2)
Conditions. The performance bond shall provide the following conditions:
(a)
There shall be recoverable by the Borough jointly and severally,
from the principal and surety, any and all fines and liquidated damages
due to the Borough and any and all damages, losses, costs and expenses
suffered or incurred by the Borough 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 Borough agency or body having jurisdiction over its acts or
defaults, pay fees due to the Borough or pay any claims, liens or
taxes due the Borough 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, attorneys' fees and
other associated expenses.
(3)
Reduction of bond. Upon written application by the grantee, the Borough
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 Borough'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.
(4)
Construction bond. The grantee shall maintain and by its acceptance
of any franchise granted hereunder agrees that it will maintain throughout
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 Borough 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 attorneys' fees and costs, up to the full amount
of the bond.
(5)
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 Borough 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 Borough may withdraw the amount
thereof, with interest, from the performance bond. Nothing herein
shall preclude the Borough from taking action in emergency situations
without the thirty-day period specified above.
(6)
Notification. Within three days of a withdrawal from the performance
bond or construction bond, the Borough shall send to the grantee,
by certified mail, return receipt requested, written notification
of the amount, date and purpose of such withdrawal.
(7)
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.
(8)
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 Borough and shall require 30 days'
written notice of any nonrenewal, alteration or cancellation to both
the Borough and the grantee. The grantee shall, in the event of any
such cancellation notice, obtain, pay all premiums for and file with
the Borough written evidence of the issuance of replacement bond or
policies within 30 days following receipt by the Borough of the grantee
of any notice of cancellation.
(9)
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.
B.
Liability and insurance.
(1)
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 Borough certificates of insurance, approved by the
Borough, 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.
(2)
Filing. Any insurance policy obtained by the grantee in compliance with this section shall be filed and maintained with the Borough 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. The grantee shall immediately advise the Borough of any litigation that may develop that would affect this insurance.
(3)
No liability limit. Neither the provisions of this section, nor any
damages recovered by the Borough hereunder, shall be construed to
or limit the liability of the grantee under any franchise issued hereunder
or for damages.
(4)
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 Borough Manager, by registered mail, of a written notice of
such intention to cancel or not to renew."
(5)
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
Borough, 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 attorneys' 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 Borough, its agents,
servants or employees or any other person indemnified hereunder."
(6)
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.
(7)
Named insured. At any time during the term of the franchise, the
Borough may request, and the grantee shall comply with such request,
to name the Borough as an additional named insured for all insurance
policies written under the provisions of this chapter or the franchise.
(8)
Inflation. To offset the effects of inflation and to reflect changing
liability limits, all of the coverages, 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 Borough.
(9)
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:
(10)
Policy inclusions. Such general liability insurance must include
coverage for all of the following:
(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:
(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, worker's compensation and employer's
liability, valid in the commonwealth, in the minimum amount of:
(13)
No limitation on liability. None of the provisions of this chapter
or any insurance policy required herein, or any damages recovered
by the Borough hereunder, shall be construed to excuse the faithful
performance by or limit the liability of the grantee under this chapter
or the franchise for damages either to the limits of such policies
or otherwise.
C.
Indemnification.
(1)
Indemnification. To the fullest extent permitted by law, the grantee
shall, at its sole cost and expense, fully indemnify, defend and hold
harmless the Borough, its officers, public officials, boards and commissions,
agents and employees from and against any and all lawsuits, claims
(including, without limitation, worker's compensation claims
against the Borough 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
Borough 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 Borough, its officers, employees,
agents, boards or commissions):
(a)
To persons or property, in any way arising out of or through
the acts or omissions of the grantee, its subcontractors, agents or
employees, to which the grantee's negligence shall in any way
contribute and regardless of whether the Borough's negligence
or the negligence of any other party shall have contributed to such
claim, cause of action, judgment, injury or damage.
(b)
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, trade name, service mark
or patent, or any other right of any person, firm or corporation,
but excluding claims arising out of or related to the Borough or educational
access programming.
(c)
Arising out of the grantee's failure to comply with the
provisions of any federal, commonwealth or local statute, ordinance
or regulation applicable to the grantee in its business hereunder.
(2)
The foregoing indemnity is conditioned upon the following: The Borough
shall give the grantee reasonable notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions
of this section. The grantee will provide the defense of any claims
brought against the Borough under this section of the franchise by
selecting counsel of the grantee's choice to defend the claim,
subject to the reasonable consent of the Borough, which will not unreasonably
be withheld. Nothing herein shall be deemed to prevent the Borough
from cooperating with the grantee and participating in the defense
of any litigation by its own counsel at its own cost and expense;
provided, however, that the grantee shall have the right to defend,
settle or compromise any claim or action arising hereunder and the
grantee shall have the sole authority to decide the appropriateness
and the amount of any such settlement. Recovery by the Borough of
any sum by reason of the liquidated damages required by the franchise
shall be deducted from any recovery which the Borough might have against
the grantee arising out of the same transaction under the terms of
this section.
A.
Authority to construct.
(1)
Authorization to commence construction and application procedures.
Within 30 days of 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 Borough, 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, Borough 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.
(2)
Power to contract. Upon grant of the franchise and in order to construct,
operate and maintain a cable system in the Borough, the grantee shall
obtain right-of-way permits from appropriate Borough, 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 Borough, county, commonwealth
or federal agency may require.
B.
Construction and technical standards.
(1)
Compliance with construction and technical standards. The 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 the 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 of 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.
(2)
State of the art. The grantee shall construct, install, operate and
maintain its system in accordance with the then-current standards
of the art of cable communications, such standards to include, but
not be limited to, the following:
(3)
Borough 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 Borough 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 Borough. Approval of each phase of new construction
or rebuild design plans shall be deemed granted for any submission
made to the Borough, unless expressly disapproved within 60 days.
All other approvals, such as permits, will be provided within the
time frames specified by relevant law and regulations.
(4)
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.
(5)
Minimum interference. The grantee's system and associated equipment
erected by the grantee within the Borough 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 ways by the grantee
shall be placed in such a manner as to interfere with normal travel
on such public way.
(6)
Borough maps. The Borough 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.
(7)
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.
(8)
Construction standards. The grantee shall at all times comply with:
(a)
National Electrical Safety Code (National Bureau of Standards).
(b)
National Electrical Code (National Bureau of Fire Underwriters).
(c)
Bell System Code of Pole Line Construction.
(d)
Applicable FCC or other federal, commonwealth and local regulations;
and
(e)
Standards as set forth in the franchise.
(9)
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 law or
regulation.
(11)
OSHA. All worker facilities, conditions and procedure 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 rule 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.
C.
System construction schedule. The franchise shall specify the construction
schedule.
D.
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 Borough within six months of such request, subject
to any line extension requirements specified in the franchise agreement.
E.
Use of streets.
(1)
Underground installation. All installations shall be underground
in those areas of the Borough 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
above ground at the time of installation, the grantee may install
its service above ground, provided that at such time as those facilities
are required to be placed underground by the Borough or are placed
underground, the grantee shall likewise place its services underground
without additional cost to the Borough or to the individual subscriber
so served within the Borough. 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.
(2)
Permits. Prior to construction or alteration; however, the grantee
shall in each case file plans with the appropriate Borough agencies,
complete use agreements with the utility companies, obtain all construction
permits and receive written approval of the Borough before proceeding,
which approval shall not be unreasonably withheld or delayed.
(3)
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:
(a)
Not endanger or interfere with the health, safety or lives of
persons.
(b)
Not interfere with any improvements the Borough, county or commonwealth
may deem proper to make.
(c)
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.
(d)
Not interfere with the rights and reasonable convenience of
private property owners, except to the minimum extent possible during
actual construction or repair.
(e)
Not obstruct, hinder or interfere with any gas, electric, water
or telephone facilities or other utilities located within the Borough.
(4)
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 Borough, 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 Borough.
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.
(5)
Relocation of the facilities. In the event that at any time during
the period of the franchise, the Borough, 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.
(6)
Cooperation with building movers. The grantee shall, on the request
of any person holding a building moving permit issued by the Borough,
temporarily raise or lower its wire to permit the moving of buildings.
The expense of such temporary removal, raising or lowering of wire
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.
(7)
Tree trimming. The grantee shall have the authority, except when
in conflict with existing Borough ordinances, to trim any trees upon
and overhanging public rights-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 Borough, such trimming may be done by it,
or under its supervision and direction, at the expense of the grantee.
(8)
Easements. All necessary easements over and under private property
shall be the responsibility of the grantee.
(9)
Private property. The 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 Borough of Chalfont. The 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.
F.
Erection, removal and common use of poles; approval for poles. No
poles shall be erected by the grantee without prior approval of the
Borough with regard to location, height, types and any other pertinent
aspect and consideration given by the Borough 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 Borough determines
that the public convenience would be enhanced thereby.
G.
Construction reporting requirements.
(1)
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 Borough 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 Borough Manager may deem necessary. The content and
format of the report will be determined by the Borough 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.
(2)
Time frame for reports. Written progress reports, as described in Subsection G(1) above, shall be submitted to the Borough on a bimonthly basis throughout the new construction or rebuild process. The Borough Manager may require more frequent reporting if he/she determines it is necessary to better monitor the grantee's progress.
(3)
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 Borough Manager prior
to its distribution.
H.
Tests and performance monitoring.
(1)
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.
(2)
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 Borough, describing
test results, instrumentation, calibration and test procedures and
the qualification of the engineer responsible for the tests.
(3)
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.
(4)
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 Borough within 60 days of completion.
(5)
Borough-required tests. Whenever there have been similar complaints
made or when there exists other evidence which, in the judgment of
the Borough, casts doubt on the reliability or quality of the grantee's
system, the Borough 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 Borough 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 Borough no later than 30 days after the Borough
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 Borough with
a report interpreting the results of the tests and recommending what
actions should be taken. If requested by the Borough, and at the Borough's
expense, the grantee shall allow an independent engineer to conduct
such tests. The grantee shall reimburse the Borough for the expense
of the tests if such tests indicate that the cable communications
system does not substantially comply with relevant laws and regulations.
A.
Services to subscribers and users.
(1)
Programming. Concurrently with the activation of the cable communications
system in the Borough, the grantee shall provide all services to subscribers
as described herein and in the franchise:
(a)
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 Borough at least 30 days prior to the
proposed implementation and, when practicable, 45 days' prior
notice to the Borough. 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.
(b)
A basic service tier shall be offered to subscribers throughout
the term of this chapter and the franchise.
(c)
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:
[1]
Government access channel, which shall be a specifically designated
channel for noncommercial local government use and shall be managed,
scheduled and programmed exclusively by the Borough.
[2]
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.
[3]
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.
(d)
The grantee shall make available leased access channels for
commercial use as required by federal law.
(e)
The grantee shall fully provide, at a minimum, services, facilities
and equipment for public, educational and government access as indicated
in the franchise.
(2)
Emergency override. The grantee shall provide service and maintain
public emergency transmission facilities to the Borough, as described
in the franchise.
B.
Installations, connections and other grantee services.
(1)
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.
(2)
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,
the grantee shall not charge a subscriber for an installation where
the grantee is late for the installation appointment. Furthermore,
in the event the grantee is late for a service appointment, the grantee
shall provide the affected customer with a bill credit. 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(3)
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.
(4)
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.
(5)
Reconnection. The grantee shall restore service to customers wishing
restoration of service, provided customers shall first satisfy any
previous obligations owed.
(6)
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 the grantee of same. A refund of unused service charges
shall be paid to the customer within 45 days of the date of termination
of service.
C.
Service calls and complaint procedures.
(1)
Business office. The grantee shall establish, operate and maintain,
within 10 miles of the Borough, 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 subscriber's service charges and providing facilities
for the production of programming.
(2)
Telephone service. The grantee shall have a locally listed or toll-free
telephone number to receive subscriber 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. The 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 Borough and utility companies to enable the Borough
or the utility companies to reach the grantee in case of emergency
on a twenty-four-hour, seven-day-a-week basis for same-day response.
(3)
Response time. The grantee shall respond to and resolve subscriber's
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.
(4)
Grantee rules. The grantee shall prepare and file with the Borough
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 Borough office responsible
for the administration of the franchise, including, but not limited
to, the address and telephone number of said office.
(5)
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 Borough, 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 Borough.
(6)
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.
(7)
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
Borough Manager may require the grantee to investigate and report
to him/her the causes and cures thereof and the Borough Manager may
also conduct his/her own investigation. Thereafter, the Borough 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 Council a notice of
objection to the order, the Council 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.
D.
Continuity of service mandatory.
(1)
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.
(2)
Cooperation. In the event that the grantee elects to rebuild, modify
or sell the system, or the Borough gives notice of intent to terminate
or fails to renew its franchise, the grantee shall cooperate with
the Borough or new grantee or operator in maintaining continuity of
service to all subscribers. During such period, the 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.
(3)
Failure to provide continuity. In the event the grantee fails to
operate the system for 30 consecutive days without prior approval
of the Borough or without just cause, the Borough may, at its option,
operate the system or designate an operator until such time as the
grantee restores service under conditions acceptable to the Borough
or a permanent operator is selected. If the Borough is required to
fulfill this obligation for the grantee, the grantee shall reimburse
the Borough for all reasonable costs or damages in excess of revenues
from the system received by the Borough that are the result of the
grantee's failure to perform.
E.
Protection of subscriber privacy.
(1)
Nondiscrimination required. The 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.
(2)
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.
(3)
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 Council, the grantee,
agent or entity hereunder or pursuant to this chapter.
A.
Records. The Borough or its officially designated representative
shall have the right to inspect all pertinent or relevant records,
books, plans, customer service logs and financial statements maintained
by the 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 Borough, at the 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 Borough and its officially
designated representatives agree to treat any information disclosed
and reports, maps and other documents submitted to or inspected by
the Borough 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.
The grantee shall make available adequate financial records within
the Borough to permit the auditing of the grantee's gross revenues.
The Borough 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 Borough any comments on the request and may, at its
own expense, resist the request. The Borough, in any event, shall
not be liable for any disclosure required by law.
(1)
Review. The grantee shall permit any duly authorized representative
of the Borough to examine and copy or transcribe any and all maps
and other records kept or maintained by the grantee or under its control
concerning the operations, affairs, transactions or property of the
grantee. If any of such maps or records are not kept in the Borough,
or upon reasonable request made available in the Borough, and if the
Borough shall determine that an examination of such maps or records
is necessary or appropriate to the performance of any of its duties,
then all travel and maintenance expenses necessarily incurred in making
such examination shall be paid by the grantee.
B.
Reports required. The grantee shall file with the Borough:
(1)
Regulatory communications. Upon request from the Borough, any reports
required by the Federal Communications Commission (FCC), including,
but not limited to, any annual proof of performance tests results,
equal employment opportunity reports (EEO), required financial information
and all petitions, applications and communications of all types submitted
by the grantee to the FCC, the Securities and Exchange Commission
(SEC) or any other federal or commonwealth regulatory commission or
agency having jurisdiction over any matter affecting operation of
the grantee's system, will be made available to the Borough.
(2)
Facilities report. An annual report setting forth the physical miles
of plan construction and plant in operation during the fiscal year
shall be submitted to the Borough. After completion of initial construction
or any rebuild, maps designating the location of the cable plant shall
be filed with the Borough. Thereafter, any revisions to the system
shall be reflected in updated maps provided to the Borough in a timely
manner after such changes are made.
(3)
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 Borough on a bimonthly basis until construction
is complete, as specified in this franchise.
(5)
Test required by Borough. Technical tests required by the Borough as specified in § 162-7H(5) of this chapter and the franchise shall be submitted within 30 days of notification.
(6)
Change in service. Written notification of any change in programming
or service shall be provided to the Borough 30 days prior to implementation,
and when practicable, prior notice shall be given 45 days in advance.
(7)
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 Borough and conspicuously posted in the grantee's
local office. All such terms and conditions, including the schedule
of charges, must have been filed with the Borough prior to their becoming
effective. Such rules, regulations, terms and conditions shall not
be in conflict with the provisions hereof or applicable commonwealth
or federal laws, rules or regulations.
(8)
Proof of bonds and insurance. The grantee shall submit to the Borough
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.
(9)
Financial and ownership reports. The following financial reports
for the franchise area shall be submitted to the Borough as provided
for below:
(a)
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.
(b)
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 Borough basis for gross revenue. Required financial
information may be provided on a consolidated basis for expenses,
depreciation and sources and application of funds.
(c)
A current annual statement of all capital expenditures, including
the cost of construction and 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.
(d)
An annual list of any changes to the officers and members of
the board of the grantee and of any parent corporation.
(e)
An annual report of the grantee and any parent corporation.
(10)
Operational reports. The following system and operational reports
shall be submitted to the Borough upon written request by the Borough
Manager or his designee:
(a)
A report on the system's technical test and measurements
as set forth herein and in the franchise.
(b)
A report on programs and services offered by the grantee, including
public, educational, government and leased access.
(c)
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.
(d)
An annual summary of complaints received and handled in addition
to any reports required in the franchise.
(e)
An annual projection of system and service plans for the future.
(11)
Additional reports. The grantee shall prepare and furnish to
the Borough, 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 Borough in connection
with this chapter or the franchise, upon written request of the Borough
Manager or his designee.
C.
Record required.
(1)
Mandatory records. The grantee shall at all times maintain:
(a)
A record of all complaints received and interruptions or degradation
of service experienced for the preceding period prior to a performance
review or a maximum of three years, whichever is less.
(b)
A full and complete set of plans, records and as-built maps
showing the location of all cable communications system equipment
installed or in use in the Borough, exclusive of subscriber service
drops.
(2)
Other records. The Borough may impose reasonable requests for additional
information, records and documents from time to time.
A.
Invitation of any applications for a franchise, public notice of
request for proposals. The Borough may invite applications for a cable
television franchise by means of a public notice advertising the availability
of its request for proposals.
(1)
The public notice shall contain, but need not be limited to:
(a)
A description of the franchise area which is sought.
(b)
A statement that a form request for proposals is available to
prospective applicants from a Borough official whose name, address
and telephone number are specified.
(c)
A statement that applicants for the franchise must be submitted,
in writing, in the form and manner specified by the request for proposals
no later than a day certain.
(d)
A statement that all applications will be made available for
public inspection during normal business hours at a specified location.
(2)
Request for proposals. Prior to inviting any applications for any
television franchise, the Borough shall prepare a request for proposals
that shall contain, but need not be limited to, the following:
(a)
A description of the cable television system and services desired
by the Borough, including any system specifications established by
the Borough.
(b)
A statement specifying the form that all applications shall
follow.
(c)
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.
(d)
A statement that all applications must contain the information
required by the request for proposals.
(e)
The closing date for the submission of applications.
(f)
The name, address and telephone number of the Borough official(s)
who may be contacted for further information.
(3)
Requirement for public hearing on reasonable notice. The Borough
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 Borough Council in accordance with the following
procedures:
(a)
There shall be an agenda for the hearing which shall specify
the proposal(s) to be considered at the hearing.
(b)
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.
(c)
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.
(d)
The notice of hearing shall:
(4)
Borough discretion. The Borough, at its discretion, may reject any
application for a franchise. In awarding a franchise, the Borough
shall allow the applicant's cable system a reasonable period
of time to become capable of providing cable service to all households
in the franchise area, may require adequate assurance that the cable
operator will provide adequate public, educational and governmental
access channel capacity, facilities or financial support and may require
adequate assurance that the cable operator has the financial, technical
or legal qualifications to provide cable service.
B.
Calculation of time. Unless otherwise indicated, when the performance
of or doing of any act, duty matter, payment or thing is required
hereunder and a period of time or duration for the fulfillment of
doing thereof is prescribed and is fixed herein, the time shall be
computed so as to exclude the first and include the last day of the
prescribed or fixed period of duration time. When the last day of
the period falls on a Saturday, Sunday or a legal holiday, that day
shall not be counted in the computation.
