A.
In the event that the Borough shall grant to a 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 a franchise
agreement.
B.
The franchise shall be granted under the terms and conditions contained
herein, consistent with the Municipal Borough Code and/or other applicable
statutory requirements.
C.
Any franchise granted by the Borough is hereby made subject to the
general ordinances 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.
D.
State of the art continuing obligation.
(1)
General requirement. Throughout the term of any franchise agreement,
the franchisee shall construct, operate, maintain and upgrade the
cable communications system in order to ensure that it continuously
conforms to the state of the art in accordance with the requirements
set forth herein below. In addition, the franchisee, either on its
own initiative or at the reasonable request of the Borough, shall
participate in or undertake experiments, test, and other activities
to enhance and advance the state of the art of cable communications
systems technology.
(2)
State-of-the-art report. A franchisee shall provide to the Borough,
in a form satisfactory to the Borough, at the Borough's request,
but no more often than once every year, a report setting forth the
franchisee's review and assessment of the current state of the
art of cable communications systems and its plans, if any, for upgrading
the system to conform to the state of the art. The report shall address,
at a minimum: technological advances making possible enhanced signal
quality, publicly available equipment for the receipt of services
or greater channel capacity and interactive systems; a list of each
jurisdiction in which new technologies have been or are being used
and a description of the experience those jurisdictions have had with
such new technologies; and assessment of the costs associated with
implementing such new technologies into the system; the franchisee's
activities to enhance or advance such technology in connection with
the system and any other cable communications system or systems operated
by the franchisee or any affiliated person in the Borough or elsewhere
and the franchisee's compliance with and any modifications with
respect thereto; and assessment of the need to scramble Signals distributed
over the system in order to prevent theft of service (such assessment
to investigate alternatives to scrambling of signals and include a
cost/benefit analysis of both scrambling and such alternatives that
takes into account significant costs and benefits both to the franchisee
and subscribers); a discussion of additional technological advances
anticipated during the remainder of the term of the franchise, along
with a projection of the costs and timetable for the franchisee offering
such advances as part of or over the system; a discussion of what
improvements the franchisee anticipates making in its customer service
facilities, equipment, systems and operations during the remainder
of the term of the franchise, along with a projection of the costs
and timetable for the implementation of such improvements; a description
of any technical experimentation which the franchisee or any affiliated
person anticipates undertaking during the remainder of the term of
the franchise; an assessment of the compatibility of the system with
subscribers' televisions and video cassette recorders, the franchisee's
compliance with the rules and regulations promulgated by the FCC pursuant
to Section 624A of the Cable Act (47 U.S.C. § 544a) and
any experimentation the franchisee is making to enhance such compatibility;
and, generally, the steps the franchisee or any affiliated person
is undertaking to continuously construct, operate, maintain and upgrade
the system in accordance with the state of the art. The state-of-the-art
report submitted by a franchisee may be only one resource that the
Borough will consider in evaluating the franchisee's obligation
pursuant to the terms and conditions of this chapter to continuously
construct, operate, maintain and upgrade the system in accordance
with the state of the art, and the Borough may commission third parties,
as necessary, to ascertain the current state of the art in cable communications
systems generally.
(3)
Procedures for maintaining state of the art. Upon receiving the report
from a franchisee required pursuant to this section of this chapter,
the Borough will evaluate such report and assemble any additional
data necessary to ascertain whether the franchisee's system or
any aspect thereof needs to be upgraded so that it meets the state-of-the-art
requirement set forth herein.
(4)
Directive. Upon completing the evaluation contemplated by this section
of this chapter, and after providing notice to a franchisee and an
opportunity for the franchisee to comment, the Borough may issue a
reasonable directive to the franchisee to upgrade the system so as
to incorporate state-of-the-art features. Within 45 days after receipt
of such directive, such franchisee shall submit plans, as specified
by the Borough, describing how it intends to complete such Upgrade.
Upon approval of such plans by the Borough, the franchisee shall commence
and diligently pursue implementation of the required upgrade.
(5)
"State-of-the-art" or "state of the art," as applicable, means that
level of technical or service performance, capacity and capability
(including, but not limited to, plant or other equipment, access channel
and other production equipment or facilities, construction techniques,
customer service, facilities, equipment systems and operations, and
performance standards) which has been developed and demonstrated in
the cable industry, or any other comparable industry that provides
services to the public under similar conditions, to be workable and
economically and technically feasible and viable from time to time
throughout the term of the franchise.
(6)
"Economically and technically feasible and viable" means capable
of being provided:
(a)
Through technology which has been demonstrated in actual applications
(not simply through tests or experiments) to operate in a workable
manner; and
(b)
In a manner which has a reasonable likelihood of generating additional
revenues or other financial benefits for a system, when measured over
the term of the franchise.
For the purpose of operating and maintaining a cable communications
system in the Borough, a grantee may erect, install, construct, repair,
reconstruct and retain in, on, over, under, upon, across and along
the public streets and ways within the Borough such wires, cable,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and equipment as are necessary
to the operation of the cable communications systems; provided, however,
that grantee complies with all design, construction, safety, and performance
provisions contained in this chapter, the franchise agreement, and
other applicable laws, including but not limited to the Federal Technical
Performance Standards, National Electrical Safety Code (current edition)
and the power company and telephone company pole contract standards.
No poles shall be erected by a 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. 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
free of charge upon the poles owned by the grantee, any wire and pole
fixtures that do not unreasonably interfere with the operations of
the grantee.
No cable communications system shall be allowed to occupy or
use the streets of the Borough or be allowed to operate without a
franchise.
The term of any franchise as granted pursuant to this chapter
shall be specified in the franchise agreement in the discretion of
the Borough.
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.
A.
Transfer of franchise. No franchise granted hereunder shall be transferred
and no control or controlling interest in any system, franchise, or
franchisee shall be transferred without the prior written consent
of the Borough, and then only under such reasonable conditions as
the Borough may establish, and only if in compliance with Section
617 of the Cable Act (47 U.S.C. § 537) and regulations promulgated
by the FCC to implement Section 617.
B.
The franchisee shall promptly notify the Borough by written petition
of any proposed transfer. The petition shall fully describe the proposed
action and shall be accompanied by a justification for the action
and, if applicable, an argument as to why such action would not involve
a change in control or controlling interest. The Borough shall notify
the franchisee as soon as all of the information required by the FCC,
the franchise agreement, this chapter and all applicable state and
local law has been received by the Borough and that therefore the
petition is complete, after which the Borough shall take action within
120 days following the date such notice is provided by the Borough,
pursuant to Section 617(e) of the Cable Act.
C.
For the purpose of determining whether it shall consent to a transfer,
the Borough may inquire, with the assistance of the grantee, into
the legal, financial, character, technical, customer service, and
operations qualifications of the prospective controlling party, and
the effect that the proposed transfer and sale price may have on rates
being paid by subscribers. Failure to provide all information reasonably
requested by the Borough as part of said inquiry shall be grounds
for denial of the proposed transfer. If the Borough finds the results
of this inquiry are satisfactory, its consent to such transfer shall
not be unreasonably withheld.
D.
Assumption of control. 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 insure 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 one year, 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, customer service, and
operations qualifications of the applicant are satisfactory and that
the proposed transfer and sale price will not result in a rate increase
to subscribers, 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.
E.
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
agreement.
F.
The Borough reserves the right to review the purchase price of any transfer or assignment of the cable television system. Any negotiated sale value which the Borough deems unreasonable will not be considered in the rate base for any subsequent request for rate increases, if permitted by applicable law and § 259-16 of this chapter.
G.
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 agreement.
H.
Except as otherwise provided in Subsection D above, the Borough reserves the right of first purchase in any transfer of the system. Should the Borough exercise this option, it shall do so within 30 days of notification and thereafter shall make payment therefor under the same terms and conditions as the proposed Transferee, or as the parties might otherwise agree.
I.
The transfer of any franchise or the transfer of control or controlling interest in any system, franchise or franchisee without the prior written consent of the Borough shall be deemed to be an abandonment of the system by the franchisee under § 259-33 of this chapter and shall entitle the Borough to all of the rights set forth under § 259-33C.
A.
Because the Borough finds that: the streets of the county, state,
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, state, and Borough at great
expense to its taxpayers; and the grant to the grantee to the said
streets is a valuable property right without which the grantee would
be required to invest substantial capital in right-of-way costs and
acquisitions; and the administration of this chapter and the franchise
imposes upon the Borough additional regulatory responsibility and
expense; and the presence of the grantee and its facilities places
additional burdens upon the Borough police and road departments and
the volunteer fire company serving the area which is supported by
the Borough; A grantee of any franchise hereunder shall pay to the
Borough a franchise fee in an amount as designated in the franchise
agreement up to the maximum amount permitted under applicable federal,
state, or local law. The present maximum franchise fee allowable is
5% of gross annual revenues.
B.
In the event that any franchise fee payment or recomputed amount
is not made on or before the dates specified in the franchise agreement,
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.
C.
The franchise fee shall be payable as specified in the franchise
agreement and shall be furnished at the time of each payment with
a statement certified by the grantee's Chief Financial Officer
reflecting the total amounts of gross revenues for the period conveyed
by the payment.
D.
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 for a period of five years from the
date of payment. Audits shall be at the expense of the Borough unless
the audit discloses an underpayment in any one year of 5% or more,
in which case the costs 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,
unless written notice of disagreement is filed by the grantee with
the Borough within such time.
A.
Grounds for revocation or acceleration of expiration date. The Borough
reserves the right to accelerate the expiration of the franchise term
and/or revoke any franchise granted hereunder and rescind all rights
and privileges associated with the franchise in the following circumstances,
each of which shall represent a default and breach under this chapter
and the franchise agreement:
(1)
If the grantee shall default in the performance of any of the material
obligations under this chapter or under such documents, contracts
and other terms and provisions entered into by and between the Borough
and the grantee.
(2)
If the grantee shall fail to provide or maintain in full force and
effect the liability and indemnification coverage or any performance
bond or security fund as required.
(3)
If the grantee shall violate any lawful orders or rulings of any
regulatory body having jurisdiction over the grantee relative to this
chapter or the franchise.
(4)
If the grantee practices any fraud upon the Borough or any Subscriber.
(5)
If it is determined that the grantee underpaid its franchise fee
by 15% or more for any year.
(6)
If the grantee's construction schedule is delayed later than
the schedule contained in the franchise agreement or beyond any extended
date set by the Borough.
(7)
If there is an occurrence of any event which may reasonably lead
to the foreclosure or other similar judicial or nonjudicial sale of
all or any material part of the system, including, but not limited
to, any of the following events:
(a)
Default under any loan or any financing arrangement material
to the system or the obligations of the grantee under the franchise
agreement;
(b)
Default under any contract material to the system or the obligations
of the grantee under the franchise agreement; or
(c)
Termination of any lease or mortgage covering all or any material
part of the system.
(8)
If in regards to any grantee:
(a)
A grantee shall suspend or discontinue its business, shall make
an assignment for the benefit of creditors, shall fail to pay its
debts generally as they become due, shall become insolvent (however
such an insolvency may be evidenced), shall be adjudicated insolvent,
shall petition or apply to any tribunal for, or consent to, the appointment
of, or taking possession by, a receiver, custodian, liquidator or
trustee or similar official pursuant to state or local laws, ordinances
or regulations of or for it or any substantial part of its property,
or assets, including all or any part of this system; or
(b)
A writ or warrant of attachment, execution, distraint, levy,
possession or any similar process shall be issued by any tribunal
against all or any material part of a grantee's property or assets;
or
(c)
Any creditor of a grantee petitions or applies to any tribunal
for the appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator, or similar official for the grantee or of any
substantial parts of the assets of the grantee under the law of any
jurisdiction, whether now or hereafter in effect, and an order, judgment
or decree is entered appointing any such trustee, receiver, custodian,
liquidator, or similar official, or approving the petition in any
such proceedings; or
(d)
Any order, judgment or decree is entered in any proceedings
against a grantee decreeing the voluntary or involuntary dissolution
of the grantee.
B.
Effect of circumstances beyond control of grantee. Notwithstanding
any other provision of this chapter or the franchise agreement, a
grantee shall not be liable for delay in performance of, or failure
to perform in whole or in part its obligations pursuant to the franchise
agreement or this chapter, due to strike, war or act of war, (whether
an actual declaration of war is made or not), insurrection, riot,
act of public enemy, accident, fire, flood or other act of God, sabotage
or other events, where a grantee has exercised all due care in the
prevention thereof and to the extent that such causes or other events
are beyond the control of the grantee and such causes or other events
are without the fault or negligence of the grantee. In the event that
any such delay in performance or failure to perform affects only part
of a company's capacity to perform, the company shall perform
to the maximum extent that it is able to do so and shall take all
steps within its power to correct such cause or causes. In correcting
such cause or causes, a grantee shall take all reasonable steps to
do so in as expeditious a manner as possible. A grantee shall notify
the Borough in writing of the occurrence of an event covered by this
subsection within five business days of the date upon which the grantee
learns of its occurrence. Shortage or unavailability of equipment
from suppliers shall not be deemed to be beyond the control of the
grantee in regards to any construction delays.
C.
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 agreement. 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. The Borough
shall comply with any related court orders.
D.
Procedure prior to revocation.
(1)
The Borough shall make written demand that the grantee do so comply
with any such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. After written demand
is made, the Borough may place its request for revocation 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 revocation, and the time and place of the meeting, notice of
which shall be published by the Borough once, at least seven days
before such meeting, in a newspaper of general circulation within
the Borough.
(2)
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.
(3)
If such failure, refusal or neglect by the grantee was with just
cause, as determined by the Council, the Council shall direct the
grantee to comply within such time and manner and upon such terms
and conditions as are reasonable.
(4)
If the Council shall determine such failure, refusal or neglect by
the grantee was without just cause, then the Council may, by resolution,
declare that the franchise of the grantee shall be revoked and the
performance bond forfeited.
E.
Disposition of facilities. In the event a franchise expires, is revoked
or otherwise terminated, the Borough may in its sole discretion, do
any of the following:
(1)
Order the removal of the system facilities from the Borough within
a reasonable period of time as determined by the Borough.
(2)
Require the grantee to maintain and operate its system for a period
of up to 18 months or such further time as may be mutually agreed
upon. During any time the grantee continues to operate the system
it shall do so pursuant to the terms of this chapter and its franchise
agreement and shall be entitled to the revenues from the system.
(3)
Order that the system be transferred to another cable operator.
F.
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, insurance and performance bond as provided herein shall
continue in full force and effect during the period of removal and
until full compliance by the grantee with the terms and conditions
of this subsection, this chapter and the franchise agreement.
G.
Restoration by Borough; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection E or F of this section, 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 or letter of credit provided by grantee. The Borough shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
A.
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 to take over and
conduct the business of the grantee whether in a receivership, reorganization,
bankruptcy or similar action or proceeding unless such receivership
or trusteeship shall have been vacated prior to the expiration of
said 120 days, or unless:
(1)
Such receivers or trustees shall have, within 120 days after their
election or appointment, full complied with all the terms and provisions
of this chapter and the franchise agreement, and the receivers or
trustees within said 120 days shall have remedied all defaults under
this chapter or the franchise agreement; and
(2)
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 agreement
and this chapter.
B.
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:
All notices from grantee to the Borough pursuant to this chapter
and the franchise agreement shall be to the Borough Manager or his
designee. Grantee shall maintain with the Borough, throughout the
term of the franchise, an address for service of notices by mail.
Grantee shall also maintain with the Borough, a local office 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 and telephone numbers and any changes thereof.
