[Ord. 1906, 8/4/2008]
a.
Statement of Intent and Purpose. The Grantor intends, by the adoption
of this Ordinance, to facilitate the development and operation of
Cable Systems to provide Cable Service. This development can contribute
significantly to meeting the cable-related needs and desires of many
individuals, associations, and institutions. Therefore, the following
are statements of the Grantor's intent when granting or renewing
a Franchise:
(1)
Provide for the installation and operation of Cable Systems
with features meeting the current and future cable-related needs and
interests of the community considering the costs to Subscribers and
to any operator of Cable Systems.
(2)
To act expeditiously on any requests for a Franchise so as to
allow the prompt provision of Cable Service while ensuring that the
public interest is met and that residents are not discriminated against
based on race, ethnicity, income, or other unfair basis.
(3)
Encourage the offering of the widest feasible scope and diversity
of programming and other services to all Grantor residents that are
consistent with community needs and interests and as measured against
the cost of providing such programming and other services.
(4)
Encourage implementation of technical advances in Cable Programming
technology, and to make available to residents Cable Services of all
kinds in the Grantor.
(5)
Provide the use of Channel capacity for Government, Educational,
and Public service access programming consistent with the needs and
interests of the community and federal law.
(6)
Ensure that rates and charges for Basic Service programming,
equipment, and service are fair, reasonable and consistent with federal
standards.
(7)
Require that a Grantee of a Franchise provide customer service
consistent with industry standards, this Ordinance and the standards
of the FCC.
(8)
Ensure that the installation and maintenance of Cable Systems
comply with all generally-applicable Grantor ordinances and regulations,
and do not interfere with the Grantor's legitimate use of Rights-of-Way
of its own facilities and property.
(9)
That the occupation of the Grantor's Rights-of-Way does
not endanger the health, safety and welfare of its citizenry, public
property or other uses of the Rights-of-Way.
(10)
Ensure the widest availability of Cable Services within Grantor
on a non-discriminatory basis.
(11)
Provide for compliance with the emergency alert provisions set
forth by the FCC, set forth under 47 C.F.R. Part 11, FCC Rules and
Regulations, Emergency Alert System (EAS). To the extent required
by federal and state law, Grantee of a Franchise shall assist the
Grantor in working with the Centre County Office of Emergency Services
and the Centre Region Emergency Management Council in the establishment
of an emergency response plan.
(12)
Provide for the payment of Franchise Fees in accordance with
federal law.
b.
Franchise Fee and Franchising Costs. Costs incurred by Grantor for
the granting or renewing of a Franchise and for Rights-of-Way use
shall be reimbursed by the collection of Franchise Fees.
[Ord. 1906, 8/4/2008]
a.
Short Title. This Ordinance shall be known and cited as the "Borough
of State College Cable System Regulatory Ordinance." Within this document
it shall also be referred to as "this Ordinance" or "the Ordinance."
b.
Applicability. The requirements of this Ordinance shall supersede
any existing ordinance(s) of Grantor inconsistent with this Ordinance
and apply to the full extent of the terms herein and shall be limited
in scope or application only to the extent as may be required by applicable
federal or state law, including such changes in Applicable Law as
may be hereinafter enacted. No provisions of this Ordinance shall
be disregarded pursuant to this subsection except on express application
to and determination by the Grantor to such effect based on the specific
factual circumstances demonstrated. When not in conflict with a Franchise
Agreement, each Grantee shall be subject to all the terms and conditions
of this Ordinance. Any Franchise existing at the time of adoption
of this Ordinance shall be subject to it at the time a renewed Franchise
is granted by the Grantor. Nothing in this Ordinance or amendments
thereto shall be interpreted to unilaterally deprive any Person of
any rights or obligations imposed by any binding and existing valid
Franchise Agreement during the term thereof, whether entered into
before or after enactment of this Ordinance, and shall impose obligations
on any such Person additional to those included in such Franchise
Agreement only to the extent permitted by law and to the extent not
inconsistent with such Franchise Agreement; provided that the failure
of the Grantor to enforce any provision herein or in a Franchise Agreement
or the failure of any Person to comply with any provision herein or
in a Franchise Agreement shall not be a waiver of the Grantor's
right to enforce such provisions nor shall it in any way constitute
evidence or agreement by the Grantor that such Person has a valid
existing Franchise Agreement. The provisions of this Ordinance shall
apply irrespective of whether a Grantee is determined to be operating
pursuant to a valid Franchise Agreement.
c.
Participation in CACC Authorized. The Grantor may negotiate Franchise
language jointly with other local Grantors in order to develop a coordinated
Franchise document with common elements shared among participating
municipalities in the Centre Area Cable Consortium ("CACC").
d.
Preservation of Police Power Authority. Any rights granted pursuant
to this Ordinance and pursuant to any Franchise Agreement authorized
hereunder are subject to the police power authority of the Grantor
to adopt and enforce ordinances necessary to the health, safety, and
welfare of the public. Grantees shall be subject to and comply with
all valid generally Applicable Laws enacted by the Grantor.
e.
Public Inspection of Records. Certain information required to be
filed with the Grantor pursuant to this Ordinance or a Franchise is
subject to inspection and copying by the public pursuant to the provisions
of Pennsylvania Open Records Law, 65 P.S. § 271, as amended
["Sunshine Law"].[1] Notwithstanding anything to the contrary set forth herein,
a Grantee shall not be required to disclose information which it reasonably
deems to be proprietary or confidential in nature. The Grantor agrees
to treat any information disclosed by a Grantee as confidential and
only to disclose it to those employees, representatives, and agents
of the Grantor that have a need to know in order to enforce a Franchise
and who agree to maintain the confidentiality of all such information.
Grantee shall not be required to provide Subscriber information in
violation of Section 631 of the Cable Act or any other Applicable
Law. For purposes of this section, the terms "proprietary or confidential"
include, but are not limited to, information relating to a Cable System
design, customer lists, marketing plans, financial information unrelated
to the calculation of Franchise Fees or rates pursuant to FCC rules,
or other information that is reasonably determined by a Grantee to
be competitively sensitive. In the event that the Grantor receives
a request under the state's Sunshine Law, public records or similar
law for the disclosure of information the Grantee has designated as
confidential, trade secret or proprietary, the Grantor shall promptly
notify Grantee of such request and cooperate with Grantee in its efforts
to protect its rights.
[1]
Editor's Note: See now 65 Pa.C.S.A. § 701 et seq.
f.
Enforcement. The Grantor shall be entitled to enforce this Ordinance
and any Franchise Agreement through all remedies lawfully available.
g.
Relationship of the Parties. Under no circumstances shall any Franchise
Agreement authorized by this Ordinance be construed to create any
relationship of agency, partnership, joint venture, or employment
between the parties.
h.
Indemnification. As a condition of use of the Rights-of-Way, every
Grantee at its sole cost and expense, shall indemnify, protect, defend
and hold harmless the Grantor, its elected officials, officers, employees,
and agents acting in their official capacities, from and against any
and all claims, demands, losses, damages, liabilities, fines, charges,
penalties, administrative and judicial proceedings and orders, judgments,
remedial actions of any kind, and all costs and expenses of any kind,
including, without limitation, reasonable attorney's fees, directly
or indirectly, in whole or in part, resulting from the granting of
a Franchise, property damage or bodily injury (including accidental
death) that arise out of Grantee's construction, operation, maintenance
or removal of a Cable System, except to the extent arising from or
caused by the sole or gross negligence or willful misconduct of the
Grantor, its elected officials, officers, employees, agents or contractors.
The Grantor shall give Grantee written notice of its obligation to
indemnify and defend the Grantor within 10 business days of receipt
of a claim or action pursuant to this section. If the Grantor determines
that it is necessary for it to employ separate counsel, the costs
for such separate counsel shall be the responsibility of the Grantor.
[Ord. 1906, 8/4/2008]
For purposes of this Ordinance, the following terms, phrases,
words, and their derivatives shall have the meanings set forth in
this Ordinance and any Franchise granted by Grantor, unless the context
clearly indicates that another meaning is intended or unless otherwise
more specifically defined in another Chapter or Code of the Grantor.
Words used in the present tense include the future tense, words in
the single number include the plural number, words in the masculine
gender include the feminine, and words in the plural number include
the singular. The words "shall" and "will" are mandatory, and "may"
is permissive. Words not defined shall be given their common and ordinary
meaning.
Filing a written acceptance of a Franchise on a form approved
by the Grantor's Solicitor with the Grantor's Secretary
notifying the Grantee of such acceptance.
Channels as designated in a Franchise to be used for Public
Access, Educational Access, or Government Access or any combination
thereof.
Channel positions designated in a Franchise Agreement for Public,
Educational, or Governmental Access ("PEG") use; and
The facilities and equipment for the use of such Access Channel
positions.
Grantee does not relinquish its ultimate ownership of Access
Facilities when designated for PEG use.
Each person, directly or indirectly, controlling, controlled
by, or under common control with the Grantee; provided that Affiliate
shall in no event mean any limited partner or shareholder holding
an interest of less than 25% of such Grantee, or any creditor of such
Grantee solely by virtue of its status as a creditor and which is
not otherwise an Affiliate by reason of owning a controlling interest
in, being owned by, or being under common ownership, common management,
or common control with, such Grantee.
The Cable Act, all applicable FCC rules, this Ordinance,
all generally applicable ordinances, and state statutes and rules
and regulations, any amendments thereto, and any of the applicable
federal and/or state laws that are now existing or hereafter adopted
or amended.
Any Person that applies for a Franchise pursuant to this
Ordinance.
The process by which an Applicant submits a request and indicates
a desire to be granted an initial Franchise to utilize the Rights-of-Way
of all, or a part, of Grantor jurisdictional area. An Application
includes all written documentation, statements and representations,
in whatever form or forum, made by an Applicant to Grantor concerning:
the construction of a System over, under, on or through the Rights-of-Way;
the area proposed to be served within Grantor by an Applicant; the
portion of the Rights-of-Way proposed to be used by an Applicant;
and any other matter pertaining to a proposed System, which is necessary
for a determination as to whether or not Applicant meets the terms
and conditions established by this Ordinance.
To the extent required by federal law, any Service tier that
includes the lawful retransmission of: (1.) all commercial television
broadcast signals carried in fulfillment of the requirements of Section
614 of the Cable Act; (2.) qualified local non-commercial educational
television broadcast signals carried in fulfillment of the requirements
of Section 615 of the Cable Act; and (3.) any Public, Educational,
and Governmental Access programming if required by a Franchise Agreement.
Basic Service as defined herein shall be consistent with the Cable
Act and federal law. A Franchise Agreement may include a more expanded
definition based upon mutual agreement between Grantor and a Cable
Operator.
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, (codified at 47 U.S.C. §§ 521-611 (1982 &
Supp. V. 1987) as amended by the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications
Act of 1996, Pub. L. No. 104-104 (1996) as it may, from time to time,
be amended.
Any Person or group of Persons (a) who provides Cable Service
over a Cable System and directly or through one or more Affiliates
owns a significant interest in such Cable System, or (b) who otherwise
controls or is responsible for, through any arrangement, the management
and operation of such a Cable System.
Programming provided by or generally considered comparable
to programming provided by a television broadcast station.
The one-way transmission to Subscribers of (i) Video Programming
or other programming service; and (ii) Subscriber interaction, if
any, which is required for the selection or use of such Video Programming
or other programming service, as such term is defined in the Cable
Act.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed or used to provide Cable Services and which is capable
of being provided to multiple Subscribers within the Grantor, 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 Subscribers without using any Rights-of-Way.
A facility of a common carrier which is subject, in whole or
in part, to the provisions of 47 U.S.C. §§ 201-226,
except that such facility shall be considered a Cable System (other
than for purposes of 47 U.S.C. § 541(c)) to the extent such
facility is used in the transmission of Cable Services directly to
Subscribers.
Any facility of any electric utility used solely for operating
its electric utility system.
Costs associated with the purchase of video production assets,
products or other resources that will provide service and support
for Access Channels for more than one year, but shall not have any
meaning inconsistent with generally accepted accounting principles.
The combined eight communities, including Benner, College,
Ferguson, Halfmoon, Harris and Patton Townships and the Boroughs of
Bellefonte and State College.
A portion of the electromagnetic frequency spectrum which
is used in a Cable System and which is capable of delivering a television
Channel (as television Channel is defined by the FCC by regulation).
An electronic device that converts signals to a frequency
not susceptible to interference within the television receiver of
a Subscriber and, through the use of an appropriate Channel selector,
permits a Cable Subscriber to view all authorized Cable Subscriber
signals delivered at designated converter dial locations.
Costs in the following categories: (i) state and local taxes
and franchise fees applicable to the provision of Cable service; (ii)
incidental costs of complying with franchise requirements, including
bond premiums and other security payments, insurance and indemnification
costs, penalties and liquidated damages, and the capital costs of
providing Public, Educational, and Government Access Channels as required
by the local franchising authority; (iii) retransmission consent fees
or copyright fees incurred for the carriage broadcast signals; (iv)
FCC regulatory fees pursuant to 47 U.S.C. § 159; headend
equipment costs necessary for the carriage of digital broadcast signals;
and (v) other programming costs. Notwithstanding, in accordance with
the FCC regulations, certain other charges are not incidental and
they are to be considered part of the franchise fee assessment subject
to the 5% cap: attorney fees, consultant fees, application or processing
fees that exceed the reasonable cost of processing such submissions,
and complimentary or discounted services provided to Grantors.
The cable or cables or other hardwire technologies that connect
the Cable System to the Subscriber's dwelling or residence to
the nearest feasible point on the System in order to receive Cable
Service.
The availability of Channel positions on the Cable System
for non-commercial educational or government use by agencies, institutions,
organizations, groups and individuals in the community, including
the Grantor or their designees for the distribution of non-commercial
programming not under the Grantee's editorial control and consistent
with Applicable Law, including:
EDUCATIONAL ACCESSAccess where local schools or education institutions, public or private, K-12, technical and community colleges, as well as other accredited institutions of higher learning, as the designated programmers having editorial control over their programming which shall concern their educational functions;
GOVERNMENT ACCESSAccess where the Grantor, County, or other governmental entities, agencies or institutions, or their designees, as designated by the Grantor are the primary or designated programmer having editorial control over its programming which shall concern governmental meetings, activities, services, or community affairs; and
EG ACCESS or EG ACCESS CHANNELEducational Access and Government Access Channels, collectively.
The Federal Communications Commission of the United States
Government.
Any tax, fee, or assessment of any kind imposed by the Grantor
on a Cable Operator or its Subscribers, or both, solely because of
their status and activities as such in accordance with Section 622(g)
of the Cable Act. The term "Franchise Fee" does not include: (i) any
tax, fee, or assessment of general applicability (including any such
tax, fee, or assessment imposed on both utilities and Cable Operators
or their Cable Services but not including a tax, fee, or assessment
that is unduly discriminatory against Cable Operators or Subscribers);
(ii) Capital Costs that are required by a Franchise to be incurred
by a Grantee for Public, Educational or Governmental ("PEG") Access
facilities; (iii) requirements or charges incidental to the award
or enforcement of a Franchise, including payments for bonds, security
funds, letters of credit, insurance, indemnification, penalties, or
liquidated damages; or (iv) any permit fee or other such fee imposed
under any valid ordinance; (v) any fee imposed under Title 17 of the
United States Code; or (vi) Grantor utility pole fees.
The initial authorization or renewal of the rights and obligations
extended by the Grantor to a Person to own, lease, construct, maintain,
or operate a Cable System in the Rights-of-Way within the Grantor
for the purpose of providing Cable Services. It shall not mean or
include: (i) any other permit or authorization required for the privilege
of transacting and carrying on a business within the Grantor required
by the ordinances and laws of the Grantor, including the provision
of Telecommunications Services; (ii) any generally applicable permit,
agreement, or authorization required in connection with construction
and operations in the Rights-of-Way including, without limitation,
permits and agreements for placing devices on poles, conduits, or
other structures, whether owned by the Grantor or a private entity,
or for excavating or performing other such work in or along the Rights-of-Way.
Cable Operators shall be responsible for obtaining all generally applicable
permits, licenses, or other forms of approval or authorization necessary
prior to the commencement of any such construction activity. Notwithstanding,
standard service installations, routine maintenance, or repair or
replacement of parts on any part of the Cable System or its appurtenances
(e.g., system passive devices, amplifiers, power supplies, pedestals,
or other related equipment) shall not require an Operator to obtain
prior approval, authorization, permits, or licenses to perform such
activities from the Grantor.
A Person, including a Cable Operator, who has been granted
a Franchise to provide Cable Service by Grantor or is required to
have a Franchise and that Person or Cable Operator's agents,
employees, lawful successors, transferees, or assignees.
The Borough of State College, Centre County, Pennsylvania.
Any revenue actually received by a Grantee, or by any other
entity that is a Cable Service on a Grantee's Cable System, including
the Grantee's Affiliates, from the operation of the Grantee's
Cable System to provide Cable Services in accordance with General
Accounting Principals ("GAAP"). By way of illustration and not limitation,
this definition would include, without limitation, revenue derived
from Basic Service and other tiers of service, Franchise Fees paid
by Subscribers, pay-per-view cable fees, installation and reconnection
fees, leased access channel fees; Converter rentals; locally-derived
revenue from home shopping to the extent conducted through a Cable
Service; all lease access payments from the Cable System; locally-derived
advertising revenues; revenues from two-way transmissions to the extent
these transmissions are considered Cable Services under federal law;
payments or other consideration received by the Grantee for the use
of the Cable System to provide Cable Service or other Cable Service
and accounted for as revenue under GAAP. Gross Revenues shall include
revenue received by any entity other than the Grantee where necessary
to prevent evasion or avoidance of the obligations under this Code
or a Franchise to pay the applicable Franchise Fees. Revenues which
are not directly attributable to specific Subscribers, including,
but not limited to, leased access fees, advertising revenues, and
home shopping commissions, shall be allocated among the franchising
jurisdictions served by the Grantee's Cable System on a per Subscriber
or other equitable basis measured in a consistent manner from period
to period. Gross Revenues shall not include (i) to the extent consistent
with GAAP, bad debt; provided, however, that all or part of any such
bad debt that is written off but subsequently collected shall be included
in Gross Revenues in the period collected; (ii) amounts collected
from Subscribers for Public, Educational and Governmental Access,
provided, however, this exclusion does not limit a Grantee's
ability to pass through Franchise related costs to the extent allowed
by valid Applicable Law; (iii) any taxes on Cable Services furnished
by Grantee which are imposed directly upon any Subscriber or user
by the State, Grantor or other governmental unit and which are collected
by Grantee on behalf of said governmental unit.
A communication network which is constructed or operated
by Grantee and which is generally available only for educational or
governmental use. The I-Net shall consist of capacity, fibers or both,
from both within the primary cable network and/or separately constructed
networks that may be dedicated to governmental, educational and other
publicly funded users for two-way, broadband communications. The I-Net
includes all equipment and maintenance of equipment required to make
the capacity available, including, but not limited to, fiber and coaxial
cable, cable modems, switching, routing, transmitting and receiving
necessary for the use of the network as set out in the individual
Franchise.
The provision of capacity in a Cable System made available
by a Cable Operator to governmental and educational buildings as determined
by the Grantor, pursuant to the specific terms of the applicable Franchise,
for non-commercial applications including, but not limited to, two-way
dedicated voice, video, data and telephony Channels connecting and
interconnecting user facilities.
Those hours during which most similar businesses in the community
are open to serve customers, e.g. Monday through Friday, 9:00 a.m.
to 5:00 p.m. In all cases, Normal Business Hours must include some
evening hours, at least one night per week, and/or some weekend hours.
Those conditions that are within the control of Grantee.
Those conditions that are not within the control of Grantee include,
but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, vandalism, public works projects
for which no advanced notice is given, and severe or unusual weather
conditions.
Any video programming services provided to any person by
a grantee certified by the FCC to operate an open video system pursuant
to Section 653 of the Cable Act, as may be amended, regardless of
the facilities used.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
The availability of Channel positions on the System for non-commercial
public use by Grantor for the distribution of non-commercial programming
not under the Grantee's editorial control and consistent with
Applicable Law. Further, Public Access shall mean access where organizations,
groups, or individual members of the general public are the designated
programmers having editorial control over their programming pursuant
to rules which may be promulgated by the Grantor.
Any building or part thereof owned or leased or for the greater
part occupied by the Grantor or other governmental unit for government
administrative purposes, but shall not include buildings owned by
Grantor and leased to third parties or buildings such as storage facilities
at which government employees are not regularly stationed.
The re-authorization of a Franchise granted to an existing
Cable Operator as provided under Applicable Law and this Ordinance.
Any and all non-trade secret documents and information required
to be completed and/or kept or filed by a Grantee on order of the
Federal Communications Commission, State, or Franchise. In accordance
with valid Applicable Law and Preservation of Police Power Authority
hereinabove, the Grantor shall maintain such information as confidential
to the extent that the Cable Operator identifies specific information
as such.
The surface of and the space above and below any public street,
public road, public highway, public freeway, public lane, public path,
public way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or Rights-of-Way
now or hereafter held by the Grantor which shall, within its proper
use and meaning, entitle Grantee to the use thereof for the purpose
of installing or transmitting over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and pertinent to
a Cable System.
The loss of picture or sound on one or more Channels on a
Cable System.
Any Cable Service installation that can be completed using
a Drop of 125 feet or less.
Any Person, who or which lawfully elects to subscribe for
any purpose to Cable Service provided by a Grantee by means of, or
in connection with, the Cable System, and whose premises or facilities
are physically wired lawfully activated to receive Cable Service from
Grantee's Cable System, including Persons who receive Cable Service
without charge according to the terms of the Franchise.
The transmission of electromagnetic signals between or among
points specified by the user, of information of the user's choosing
without change in the form or content of the information as sent and
received regardless of the technology used. This term does not include
Cable Service.
The Telecommunications Act of 1996 codified at Title 47 of
the United States Code.
The offering of Telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public. This term does not include Cable Service,
which is instead subject to separate Cable Service franchising requirements
under this Ordinance.
Employees of a Grantee who have the authority and capability
while speaking with a Subscriber to, among other things, answer billing
questions, adjust bills, and schedule service and installation calls.
[Ord. 1906, 8/4/2008]
a.
Franchise Required. It shall be unlawful for any Person to construct,
operate or maintain a Cable System or other competing Cable services,
including OVS, in the Grantor without a Franchise in the form of a
Franchise Agreement authorizing the same, unless valid applicable
federal or State law prohibits the Grantor's enforcement of such
a requirement. Such Franchise Agreement shall comply with all of the
specifications of this Ordinance unless otherwise specified by the
Grantor.
b.
Franchise Not Exclusive. Any Franchise granted by the Grantor shall
be non-exclusive. The Grantor specifically reserves the right to grant,
at any time, such additional Franchises for a Cable System or any
component thereof, to any other Person including itself, as it deems
appropriate, subject to this Ordinance and valid applicable State
and Federal Law.
The terms and conditions of any Franchise granted or renewed
after the effective date of this Ordinance shall be, when taken as
a whole, no less burden some or more beneficial than any other Franchise
granted or renewed subject to this Ordinance when taking into consideration,
where reasonably warranted, the situation that existed at the time
in which the earlier terms were adopted; provided, however, that nothing
herein shall be construed as requiring the use of identical terms
or conditions, or limit the enforceability of conditions that are
freely negotiated.
c.
Authority for Use of Rights-of-Way. For the purpose of constructing,
operating, and maintaining a Cable System in the Grantor, Grantee
may erect, install, construct, repair, replace, relocate, reconstruct
and retain in, on, over, under, upon, across and along the Rights-of-Way
accessible for construction of a Cable System within the Grantor such
lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment
as are necessary and appurtenant to the operation of the Cable System,
subject to the requirements of this Ordinance and all other applicable
Grantor codes. Nothing in this Ordinance shall be construed to require
the Grantee to construct, operate, or maintain underground any ground-mounted
appurtenances such as customer taps, line extenders, system passive
devices, amplifiers, power supplies, pedestals, or other related equipment.
d.
Franchise Term. A Franchise shall commence upon acceptance by Grantee as defined in § 7-315 herein and as may continue for up to 15 years from the date of acceptance, unless renewed, revoked or terminated sooner as herein provided.
e.
Area of Cable Service. Every Franchise shall apply to the area designated
by the Franchise Agreement approved by the Grantor.
f.
Application for Grant of Initial Franchise. In conformance with the
Cable Act and FCC rules, an Application for an initial Franchise for
a Cable System to provide Cable Service shall at a minimum be subject
to additional information needed by the Grantor, to understand the
Application, including the following:
(1)
The Applicant's name.
(2)
The names of the Applicant's officers and directors.
(3)
The business address of the Applicant.
(4)
The name and contact information of a designated contact for
the Applicant.
(5)
A description of a geographic area of the Grantor that the Applicant
proposes to serve.
(6)
The Public Access or EG Access Channel capacity and capital
support proposed by the Applicant.
(7)
The term of the agreement proposed by the Applicant.
(8)
Whether the Applicant holds an existing authorization to access
the public Rights-of-Way in the Grantor Franchise.
(9)
The amount of Franchise Fee the Applicant offers to pay.
(10)
Information necessary for Grantor to evaluate a Grantee's
legal, technical, and financial qualifications to construct, own,
and operate a Cable System.
(11)
Any additional information required by applicable state laws
or Grantor Ordinances.
g.
Consideration of Initial Franchise Application. Applicants may be
evaluated according to the information included in an Application
as required by § 7-304f, and within a maximum time, after
90 days for Persons with existing authority to access Rights-of-Way
and 180 days for Persons that do not have authority to access Rights-of-Way.
The times start on the date an Applicant files an Application or other
writing including certain minimum information which is set forth in
§ 7-304f of this Ordinance and deemed complete by the Grantor.
The Grantor and an Applicant may agree, in writing, to extend the
ninety- or one-hundred-eighty-day time period for negotiations. It
may then be adopted at the date as permitted by this § 7-304g.
If the ninety- or one-hundred-eighty-day time elapses without action
by the Grantor, the Applicant is automatically granted an interim
Franchise based on the Application submitted. Thereafter, the Grantor
and applicant may continue to negotiate the terms of a franchise in
an attempt to reach a negotiated Franchise. The ninety/one hundred
eighty-day time may be tolled by the Grantor if it has requested and
not received information from the Applicant.
h.
Grant of Additional Franchise and Competing Service.
(1)
Since competing or overlapping Franchises may encourage the
introduction of better Cable Services and quality at lower prices,
the Grantor will at all times attempt to accommodate additional entrants.
At the same time it is recognized that the introduction of overlapping
Cable Systems could have a potential adverse impact on the Rights-of-Way,
and on the quality and availability of existing Cable Services to
the public. Accordingly, the Grantor shall issue a Franchise in an
area where another Grantee is operating only following a public hearing
to consider the potential impact which the grant of an additional
Franchise may have on the community and the Rights-of-Way. In considering
whether to grant one or more additional Franchises, the Grantor shall
specifically consider, and address in a written report, the following
issues:
(a)
Whether or not Applicant has provided, at a minimum, information
with its Application as required by § 7-304f, and consideration
described in § 7-304g.
(b)
The legal, technical, and financial qualifications of Applicant
and agreement by a Grantee to comply with such requirements of the
Grantor as may be determined by it to be applicable to a Grantee in
conformance with Applicable Law.
(c)
Acceptance of a Franchise and the terms therein.
(d)
The capacity of the Rights-of-Way to accommodate one or more
additional Cable Systems and the potential disruption of Rights-of-Way
and private property that may occur if one or more additional Franchises
are granted.
(e)
Such other information as the Grantor may deem appropriate to
be considered prior to granting any competing or overlapping Franchise.
i.
Application for Franchise Renewal. Renewals will be according to
valid Applicable Law, as amended. A Grantor and a Grantee, by mutual
consent, may enter into Renewal negotiations at any time during the
Franchise term of a Franchise Agreement. According to Applicable Law,
Grantor will review and evaluate the past performance of a Grantee,
including compliance with an existing Franchise. Also, review and
determination by Grantor of current and future community needs and
the technical, financial, and legal capabilities of a Grantee to meet
the current and future cable service-related needs in a new Franchise
considering the reasonable cost to do so.
j.
Permits for Non-Franchised Entities. The Grantor may issue a license,
easement, or other permit to a Person other than the Grantee to permit
that person to traverse any portion of the Rights-of-Way for purposes
other than providing Cable Service. Such license or easement, absent
a grant of a Franchise in accordance with this Ordinance, shall not
authorize nor permit said Person to provide Cable Service of any type
to any home or place of business within the Grantor nor render any
other service within the Grantor except as specifically authorized
by Grantee.
k.
Franchise Provisions.
(1)
All Franchises granted pursuant to this Ordinance are subject
to this Ordinance, including at least the following provisions:
(a)
The continuing authority of Grantor to impose such other regulations
of general applicability through lawful exercises of the Grantor's
police powers as may be determined by the Grantor to be conducive
to the health, safety, and welfare of the public.
(b)
The continuing authority of Grantor to control and regulate
the use of Rights-of-Way.
(c)
The authority of Grantor or its designees upon reasonable notice
to inspect all construction or installation work performed by a Grantee
in Grantor subject to the provisions of the Franchise and this Ordinance,
and to make such inspections as it will find necessary during regular
business hours to insure compliance with the terms of the Franchise,
this Ordinance, and Applicable Law.
(d)
The authority of Grantor or its designees to inspect the financial
records related to Franchise Fees, maps, plans, and other like materials
of the Grantee upon reasonable notice to insure compliance with the
terms of the Franchise, this Ordinance, and Applicable Law.
(e)
The authority of a Grantor, upon the revocation or denial of
renewal as provided therein, to require a Grantee to remove at Grantee's
own expense any and all portions of a Cable System from the Rights-of-Way
within the Grantor; provided, however, Grantee shall not be required
to remove its Cable System, or to relocate the System, or to sell
the System, or any portion thereof as a result of revocation, denial
of renewal, or any other action to forbid or disallow Grantee from
providing Cable Services if the System is actively being used to provide
non-cable services or other services not regulated under the Cable
Act.
(f)
The authority of a Grantor to require a Franchise Fee.
(2)
Federal, State, and Grantor Jurisdiction.
(a)
This Ordinance and any Franchise Agreement will be construed
in a manner consistent with all Applicable Law.
(b)
In the event that the state or federal government discontinue
preemption in any area of Cable Service over which it currently exercises
jurisdiction in such a manner as to expand rather than limit municipal
regulatory authority, the Grantor and a Grantee shall in good faith
negotiate applicable change to modify a Franchise Agreement to comply
with the changed law to ensure competitive equity between a Grantee
and other Cable Operators, taking into account the conditions under
which other Cable Operators are permitted to provide Cable Services
to Subscribers in the Grantor.
(c)
This Ordinance will apply to all Franchises granted or renewed
from and after the effective date of this Ordinance.
(d)
Grantee will not be relieved of Grantee's obligation to
comply with any of the provisions of this Ordinance or any Franchise
Agreement granted pursuant to this Ordinance by reason of any failure
of the Grantor to enforce prompt compliance.
(e)
In the event of a change in Applicable Law affecting this Ordinance,
the Grantor may amend this Ordinance to comply with such change in
Applicable Law.
(3)
Franchise Agreement.
(a)
By acceptance of a Franchise, a Grantee acknowledges and agrees,
unless otherwise provided in the Franchise, that this Ordinance in
whole and its Exhibits are incorporated and made part of a Franchise
Agreement and shall be a binding contract. In addition, the Franchise
Agreement accepted by a Grantee is deemed to include the following
representations:
(i)
Grantee accepts and agrees to all of the provisions
of this Ordinance, as to construction, operation, or maintenance of
the Cable System, which the Grantor may include in the Franchise Agreement
subject to Applicable Law.
(ii)
Grantee has examined all of the provisions of
this Ordinance and agrees that the provisions thereof are valid and
binding and enforceable as of the effective date of the Franchise
Agreement.
(iii)
Grantee recognizes the right of the Grantor to
adopt such additional regulations of general applicability as it will
find necessary in the exercise of the Grantor's police power.
Any amendment to the Grantor Code binding on Grantee shall be confined
to changes which do not materially alter the rights and obligations
of Grantee granted under a Franchise Agreement.
(b)
The Franchise Agreement will contain such further conditions
or provisions as may be included in the proposal of a Grantee and
negotiated between the Grantor and a Grantee. In case of such conflict
or ambiguity between any terms or provisions of a Franchise Agreement
and this Ordinance, the Franchise Agreement will control.
[Ord. 1906, 8/4/2008]
a.
Cable System Design. Every Grantee shall offer Cable Service that
meets the cable-related needs of the Grantor in accordance with Applicable
Law. The Franchise shall include a description of the Grantee's
Cable System including the general design and capabilities of the
Cable System to identify how the Cable System will meet the current
and future Cable needs of the Grantor and the schedule for commencement
and completion of construction. Every Grantee shall have responsibility
for the design and maintenance of a Cable System including subscriber
premises equipment, unless the equipment is owned by the Subscriber.
Every Grantee will provide notices regarding the use and operation
of any equipment to be operated by Subscribers in accordance with
federal law.
b.
System Description and Maps. A Grantee shall provide the Grantor,
upon written request, a complete set of Cable System location maps
of the service area, on which will be shown those areas within the
Grantor which its Cable System exists and the description and location
of all Rights-of-Way within which the Cable System has been constructed.
These maps shall be provided to the Grantor in hardcopy and, if available,
electronic format. Updated maps shall be delivered to the Grantor
within 30 days after a request is made.
c.
Bi-Annual Technology Review. It is recognized that technology is
rapidly changing and that subsequent to its initial construction,
further modifications to incorporate increased Channel capacity with
compression technology, fiber optics and other unidentified technologies
which materially affect the capability of the System to offer new
and additional services such as interactive television, video on demand
and similar services, will be desirable. No more than once every two
years, the Grantor or its representatives, with the cooperation and
assistance of a Grantee, may conduct a full compliance review, including
possible public hearing, with respect to whether Grantee has complied
with the material terms of the Franchise Agreement, so long as it
provides Grantee with 90 days' written notice in advance of the
commencement of any such review or public hearing.
d.
Grantor, Installation and General Line Extension Policy.
(1)
A Grantee providing initial Cable Service within a Grantor shall
serve all residential areas as described in the Franchise Agreement
and shall extend Cable System and Cable Service to contiguous areas
upon request of the Grantor when a density of 30 homes per cable mile
is reached. In a Renewed Franchise, the Franchise Agreement will provide
a description of the Grantee's current service area. Grantee
will extend Cable Service to contiguous areas which have 30 homes
per cable mile. Nothing herein shall be construed to prevent a Grantee
from serving areas not covered under this section upon agreement with
developers, property owners, commercial and business establishments,
or residents.
(2)
Subscribers who request Installation or maintenance or repairs
shall be given an "appointment window" for installations, service
calls, and other installation activities at a specific time or, at
a maximum, a four-hour time block during Normal Business Hours. (The
Grantee may schedule service calls and other installation activities
outside of Normal Business Hours for the convenience of the customer).
Persons requesting Installation of residential cable service shall
be afforded a right of rescission between the time Cable Service is
requested and the time service is actually installed. All Standard
Installations, reconnects, service upgrades or downgrades shall be
performed within seven working days of the date the order was placed
by the Subscriber unless a line extension is required, in which event
Cable Service shall be extended in accordance with § 7-305d(4)
of this Ordinance. Standard Installations are those that are located
up to 125 feet from the existing distribution system or the distribution
system to be built in compliance with this § 7-305d.
(3)
Only those homes which require Drops in excess of 125 feet shall
be required to pay for Grantee's materials and labor costs, at
the rate per foot. All other installations shall be performed at no
more than the advertised normal installation rate.
(4)
Grantee shall extend Cable Service to any residence(s) upon
the written request of one or more residents who shall reside within
the requested extension area and who shall agree to subscribe to Grantee's
Cable Service where the number of occupied homes, and homes for which
certificates of occupancy have been issued, which would be served
by the requested extension equals seven homes per 1/4 cable mile or
more with the measurement starting from the closest existing usable
point of connection to the System. Unless additional time has been
agreed to by the Grantor, such extensions shall be completed within
90 days of submittal of a request (weather permitting) where the above
density standard is met and all additional utility permits or other
Right-of-Way permits have been obtained. The Grantor and Grantee may
agree to a different time for extension in particular instances.
(5)
If the number of homes per 1/4 cable mile is less than seven,
the requesting subscriber(s) may obtain service by paying a share
of the incremental cost of the extension as follows:
Grantee shall pay a share of costs calculated as the fraction
derived from the existing density as calculated above divided by seven
homes per 1/4 mile; requesting subscriber(s) share shall equal the
remainder. For example, if the existing density is three homes per
1/4 mile, Grantee shall pay 40% of the extension cost and the requesting
subscriber(s) shall pay the remaining 60%.
When Grantee receives a request for an extension, the Grantee
shall, within 30 days, respond in writing with its calculation of
the density and such other terms as may be needed to fully inform
subscriber(s), including cost sharing and reimbursement procedures.
If the density is less than seven homes per 1/4 mile, Grantee shall
also provide a firm price good for 90 days reflecting the proportional
share which the requesting Subscriber(s) must pay on a cost sharing
basis to obtain Cable Service. Within 90 days from payment of the
cost share by prospective Subscriber(s) and receipt of all necessary
utility permits or other Right-of-Way permits, Grantee shall complete
the extension of service. A Franchise may include a description of
the cost sharing policy in place if different than what is described
in this section.
(6)
Nothing in this § 7-305d shall prohibit the Grantor,
the Grantee, or real estate developers from entering into an agreement
whereby entire new housing developments in the Grantor shall be pre-wired
for efficient future expansion of Cable Service.
e.
Interconnection. In accordance with Applicable Law, including FCC
rules, and the purposes of allowing for Public Access and EG Access
Programming telecasts on Cable Systems serving Subscribers in the
Grantor and adjoining communities, a Grantee will not interfere with
additional connections by other Cable Operators at studio or transmission
source for Public Access and/or EG Access Programming telecasts in
the Grantor. Such connections shall be made by direct return line
connection or other appropriate methods independent of a Grantee's
Cable System.
f.
Provision of Service.
(1)
After Cable Service has been established by activating trunk
and distribution cable for any area, Grantee shall make a standard
installation to any requesting Subscriber within that area seven days
from the date of request.
(2)
A Grantee, upon written request of Grantor, shall install and
provide Basic Service as described in a Franchise Agreement, (excluding
Pay-Per-View Television and non-video services) to all Public Buildings
designated by Grantor in a Franchise at no charge for either the initial
Normal Installation or for monthly service provided at each location.
Each of these installations should include one signal Drop, one outlet,
and one Converter (or such other terminal equipment as may be necessary
to provide an electronic interface with a television receiver). The
Public Buildings to be provided this complimentary service shall include
Public Buildings currently connected to and receiving complimentary
Basic Service; Public Buildings as described in a Franchise; or any
such newly-constructed Public Buildings.
(3)
If more than one outlet is required at any Public Building as
described in a Franchise, Grantee shall install such other outlets
at the cost charged to other institutional facilities for installation
and ongoing service. The distribution of the Cable System inside such
buildings shall be the responsibility of the user.
(4)
If required by Grantor under the Franchise, Grantee will make
available, without charge, one free cable modem service outlet to
all School buildings and Public Libraries. The specific locations
shall be identified in the Franchise Agreement. For the purposes of
this section, the term "School" means an educational institution that
receives funding pursuant to Title I of the Elementary and Secondary
Education Act of 1965, 20 U.S.C. § 6301 et seq., as amended
and does not mean "home schools."
g.
Technical Standards. A Cable System of a Grantee shall be designed,
constructed and operated so as to meet those technical standards promulgated
by the Federal Communications Commission relating to Cable Systems
contained in Part 76 of the Federal Communications Commission's
rules and regulations relating to Cable Systems and found in Code
of Federal Regulations, Title 47, Sections 76.601 to 76.617, as amended,
or as may, from time to time, be amended. The results of tests required
by the Federal Communications Commission must be filed with the Grantor
within 10 business days of written request.
h.
Special Testing.
(1)
At any time after commencement of service to Subscribers upon
30 days' written notice, and in the presence of a representative
of the Grantee, the Grantor may require or may retain an independent
engineer to perform additional tests, full or partial repeat tests,
or tests involving a specific Subscriber's Drop. Such additional
tests will be made on the basis of Complaints received or other evidence
indicating an unresolved controversy or significant noncompliance,
and such tests will be limited to the particular matter in controversy.
(2)
The Grantor shall endeavor to so arrange its requests for such
special tests during regular business hours so as to minimize hardship
or inconvenience to Grantee or to the Subscriber. The rights and obligations
of the Grantor and Grantee under this section shall at all times be
subject to Applicable Law and FCC regulation.
[Ord. 1906, 8/4/2008]
a.
Construction. Grantee shall comply with all generally applicable
codes and ordinances with respect to construction within Rights-of-Way,
and shall obtain all necessary permits and licenses required by federal,
state and local law, ordinances and rules as required of other like
users of the Rights-of-Way, before commencing construction in Grantor
Rights-of-Way. A Grantee shall furnish to Grantor a written description
of its System, including the size, appearance, and location of aboveground
facilities, boxes, pedestals, and equipment being installed under
their permit. The Grantor may review the submittal for compliance
with the Grantor ordinances and include this as an Exhibit in a Franchise.
This requirement shall not be interpreted or construed in any way
to require a Grantee to obtain from Grantor prior approval, authorization,
permits, or licenses to repair above-ground appurtenances, pedestals,
and similar equipment or replace with facilities of the same or comparable
size, or to perform maintenance or repairs on any part of the System
where the Right-of-Way is not being disturbed.
b.
Compliance with Laws. As a minimum, and without limitation, Grantee
shall adhere to the Grantor's generally-applicable ordinances
relating to Rights-of-Way construction and use safety standards and
all building and zoning codes currently or hereafter in force in the
Grantor. The construction, installation, and maintenance of the Cable
System shall be effectuated by Grantee in a manner that is consistent
with the laws, ordinances and construction standards of the Commonwealth
of Pennsylvania, all applicable industry standards, the Occupational
Safety and Health Administration, FCC, and the Standards of Good Engineering
Practices for Measurement of Cable Systems of the National Cable Television
Association to the extent applicable, as well as all other valid generally
Applicable Laws, rules, regulations and ordinances, federal, state
and local, as the same may be modified or amended from time to time,
pursuant to the Grantor's legitimate exercise of its police powers.
c.
Minimum Interference. A Grantee shall construct and maintain its
Cable System so as to minimize any adverse impact on public improvements
or facilities of others in a Rights-of-Way and which will not unnecessarily
interfere with the usual and customary uses in the Rights-of-Way.
d.
Erection of Poles Prohibited Without Approval.
(1)
A Grantee shall not erect, for any reason, any pole on or along
any Rights-of-Way or in an existing aerial utility system without
the prior approval of the Grantor or owner of the facilities proposed
to be attached to. A Grantee shall negotiate with the Grantor or,
as applicable, any private utility and furnish Grantor with a copy
of a current pole attachment agreement or agreement for conduit use,
or both, before commencement of construction.
(2)
Above-ground location of Cable System and related facilities
shall generally be located where reasonable and safe and in a manner
that will not adversely affect the Grantor or other public or private
property.
e.
Reservations of Rights-of-Way. Nothing herein or in a Franchise shall
be construed to prevent the Grantor from constructing sewers, grading,
paving, repairing or altering any Rights-of-Way, or laying down, repairing
or removing water mains or constructing or establishing any other
public work. All such work shall be done, insofar as practicable,
in such manner as not to obstruct, injure or prevent the free use
and operation of poles, wires, conduits, conductors, pipes or appurtenances
of Grantee. If any such facilities of Grantee shall interfere with
the construction or repair of any Rights-of-Way or public improvement,
then upon 30 days' written notice all such property of the Grantee
shall be removed or replaced in such manner as shall be directed by
the Grantor so that the same shall not interfere with the public works
of the Grantor. Such removal or replacement shall be at the expense
of Grantee. The Grantee shall at all times have the right to abandon
its property. However, any such abandonment shall be in accordance
with pole attachment agreements, a Franchise, and valid applicable
state, federal and local law.
f.
Underground Installation. In those areas within the Grantor where
Cable System facilities and other utilities are currently placed underground,
all Cable System facilities shall remain or be placed underground.
In areas where telephone and electric utility facilities are above
ground at the time of a Grantee's installation, Grantee may install
its Cable System facilities above ground, provided that at such time
as both electric and telephone utility facilities are placed underground,
Grantee shall likewise place its Cable System facilities underground
without cost to the Grantor. Nothing contained in this section shall
require Grantee to construct, operate and maintain underground any
ground-mounted appurtenances.
g.
New Subdivision. A Grantee shall offer cable services to residential
development constructed or erected after the date of this Ordinance;
provided the dwelling units meet the Density Requirement, specified
herein. The developer or subdivider developing any residential development
within the Grantor shall give advance written notice to Grantee of
the beginning of excavation for or construction of off-site improvements
in any residential development to enable installation of such conduit,
pedestals, substructures and other equipment as may be necessary to
provide Cable Service to the residential units in such a development
so as to provide minimal interference with surface improvements. The
same density requirements shall apply as defined in this Ordinance.
If the developer gives the Grantee adequate notice (as defined below),
then Grantee shall be obligated to install all cable lines underground
at the time the subdivision is constructed rather than when the individual
lots are actually occupied.
In cases of new construction or property development where utilities
are to be placed underground, the developer or property owner shall
give the Grantee at least 10 days' written notice of such construction
or development, and of the particular date on which open trenching
will be available for the Grantee's installation of conduit and/or
cable. The Grantee shall provide specifications as needed for trenching.
Cost of trenching and easements required to bring Cable Service
to the development shall be borne by the developer or property owner;
provided, however, if the Grantee fails to install its conduit and/or
cable within 10 working days of the date the trenches are available,
as designed in the notice given by the developer or property owner,
and the trenches are closed after the five-day period, the cost of
new trenching shall be borne by the Grantee.
h.
Property Damage and Repair.
(1)
Grantee shall endeavor to minimize the occurrence of damage
to improvements in the Rights-of-Way and all public and private property.
If damage occurs, Grantee shall promptly notify the property owner
within seven days in writing. Whenever the Grantee disturbs or damages
any Rights-of-Way, other public property or any private property,
the Grantee shall promptly restore the property to a condition reasonably
comparable to that existing immediately prior to the disturbance.
In addition, if Grantee is restoring Rights-of-Way, it shall do so
in accordance with all applicable requirements. If restoration is
not satisfactorily performed by the Grantee within a reasonable time,
the Grantor may, after prior written notice to the Grantee, or without
notice where the disturbance or damage may create a risk to public
health or safety, cause the repairs to be made and recover the costs
of those repairs from Grantee. Within 30 days of receipt of an itemized
proof of payment of those costs, including the cost of labor, materials
and equipment, the Grantee shall pay the Grantor.
(2)
Upon completion of work which caused any disturbance or damage
to private property, Grantee shall promptly commence restoration and
will use its best efforts to commence the restoration within 72 hours
of written notice from Grantor, weather permitting and considering
the nature of the work that must be performed. Grantee shall also
perform such restoration in accordance with any customer service standards
required by a Franchise.
(3)
When Grantee excavates the surface of any Rights-of-Way, Grantee
shall be responsible for restoration of such excavation in accordance
with all Grantor general ordinances, rules, regulations and standards.
Throughout the term of its Franchise, Grantee's Cable System
and related facilities including above-ground pedestals, vaults, boxes,
generators, power supplies or structures of any kind, shall be maintained
in proper order and repair.
(4)
Upon completion of restoration in any area, Grantee will notify
the Grantor.
(5)
If Grantee enters private property for the purposes of construction
where there is no dedicated public easement, Grantee shall first secure
the private property owner's consent.
i.
Permit Requirements.
(1)
Subject to the generally applicable ordinances of Grantor, a
Franchise and this Ordinance establishes the general rules and scope
of authority for Grantee to construct and maintain and operate its
Cable System within the Rights-of-Way of the Grantor. Grantee shall
designate a responsible contact person including a telephone number
available seven days a week, 24 hours a day, with whom representatives
of the Grantor can communicate with on all matters relating to Cable
System installation, construction, operation, and maintenance.
(2)
Prior to any excavation within the Rights-of-Way, a Grantee
shall obtain a permit, pay all applicable fees, and perform such work
in accordance with applicable provisions of a Franchise, and/or other
applicable ordinances or regulations with respect to excavation work.
Notwithstanding the above, no permit shall be required for Cable Service
drops for individual Subscribers, servicing of pedestals, or other
routine maintenance of the Cable System that does not result in surface
disturbance of the public right-of-way as outlined in § 7-306a.
(3)
A Grantee must be current with all requirements of this Ordinance
and all Franchise requirements, including payment of required fees
and charges and insurance before a permit is issued by Grantor.
j.
Cable System Drawings. Grantee shall keep and maintain accurate records
and as-built drawings of its Cable System constructed, reconstructed,
or relocated within the Grantor's Rights-of-Way in accordance
with § 7-305b of this Ordinance. Grantee shall cooperate
promptly and fully with the Grantor and take all reasonable measures
necessary to provide accurate and complete information regarding the
nature and location of its Cable System located within the Rights-of-Way
when requested by the Grantor to facilitate public improvements. Such
location maps and information shall be at the sole expense of Grantee
without expense to a Grantor, its employees, agents, or authorized
contractors.
k.
Grantee Responsible for Costs. All earth, materials, sidewalks, pavings,
crossings, utilities, public improvements, or improvements of any
kind disturbed or removed by a Grantee in its activities under its
Franchise shall be fully repaired or replaced promptly by a Grantee
and as required elsewhere in this Ordinance and the Franchise Agreement
and as may be required in accordance with applicable Grantor's
streets and sidewalks design standards and state law. Any such repair
or replacement shall be at Grantee's sole expense and to the
reasonable satisfaction of the Grantor or owner thereof.
l.
Procedure for Enforcement and Administration Relating to Construction.
The Grantor has the responsibility to manage and control use of the
Rights-of-Way or utility easements within the Grantor's jurisdictional
boundaries. In accordance with Applicable Law, including ordinances
of general application, the Grantor has the authority to administer
and enforce Rights-of-Way construction standards for Grantee's
Cable System on a non-discriminatory basis, including the authority
to collect permit fees, review plans, and enforce the provisions of
a Franchise, and, may utilize the assistance of qualified independent
third parties.
(1)
Upon reasonable notice, the Grantor has the right to inspect
all construction or installation work performed subject to the provisions
of this ordinance and applicable Franchises of the Grantor; and to
make such tests as they it shall find necessary to ensure compliance
with the terms of a Franchise and applicable requirements of the Grantor;
provided, however, a representative of Grantee is present for all
such testing, which shall occur during normal business hours (generally
between the hours of 9:00 a.m. and 5:00 p.m.).
(2)
Nothing in this Ordinance or a Franchise granted pursuant to
it gives permission to use the poles, conduit or other facilities
of the Grantor or others. A separate agreement for such use or connection
shall be the responsibility of Grantee.
m.
Work Performed by Others.
(1)
A Grantee shall make available, upon request, to the Grantor
the names and addresses of any Person, contractor, subcontractor,
agent, representative or entity other than the Grantee, which performs
services pursuant to a Franchise; provided however, that all provisions
of this Ordinance and a Franchise remain the responsibility of a Grantee.
(2)
All provisions of a Franchise shall apply to any of a Grantee's
subcontractors or others performing any work or services pursuant
to the provisions of a Franchise.
[Ord. 1906, 8/4/2008]
a.
Parental Control Device. Upon request by any Subscriber, Grantee
shall make available at Grantee's actual cost a parental control
or lockout device compatible with the Subscriber's equipment
that will enable the Subscriber to block access to any or all Channels
in accordance with Sections 640 and 641 of the Cable Act.
b.
Leased Access Channels. Leased access channels shall be provided
in accordance with Section 612 of the Cable Act. A leased access channel
need not be activated or otherwise made available for any particular
user until such time as an agreement with respect to charges for said
Channel has been reached between Grantee and said user. Grantee shall
charge no more for said Channel use than that amount allowed under
Federal or State law.
c.
Emergency Use and Safety Alert. The Grantee shall comply with all
emergency or disaster notification requirements in accordance with
and at the time required by the provisions of the then applicable
valid law, including FCC Regulations [47 C.F.R. Part 11, FCC Rules
and Regulations, Emergency Alert System (EAS)] and provisions relating
to the Grantor's Emergency Operations Plan [35 Pa.C.S.A. §§ 7101
- 7707] and the Pennsylvania Amber Alert System [35 P.S. § 7025.1
et seq.].
d.
Institutional Network.
(1)
A Grantee shall, if required in the Franchise Agreement, construct,
activate, and thereafter maintain an Institutional Network capable
of transmitting two-way voice, data and video signals. A specific
plan shall be made part of a Franchise Agreement.
(2)
The Institutional Network shall be designed and constructed
so as to interconnect Public Buildings including educational institutions,
Grantor facilities, libraries, police and fire departments and other
institutions as designated by Grantor.
e.
Access Channels.
(1)
If required in the Franchise Agreement, the Grantee shall make
bandwidth on its Cable System available for up to two downstream Channels
for non-commercial Access programming use. Channel capacity for Public
Access shall be provided if required in a Franchise and approved unanimously
by the CACC. Additional PEG Channel capacity shall be made available
when, over a period of six consecutive months, 60% of the prime time
(7:00 p.m. to 11:00 p.m. each evening) on the existing Access Channel(s)
on average are fully occupied with locally-produced Access Channel
programming. Such additional Channel availability will be provided
within 180 days of the Grantor's certification of such use and
written request for additional Channel(s). Grantee shall offer to
each of its Subscribers who receive all or any part of the Cable Services
offered on the System, reception of the Access Channels. No charges
shall be made for Channel time or playback of prerecorded programming.
Management of the Access Channels programming shall be the responsibility
of the Grantor, and not the responsibility of the Grantee.
(2)
It shall be the Grantee's sole responsibility to provide
the cable, wire, lines and/or other necessary signal distribution
equipment such that live or playbacks of Access Channel programming
can be received from the selected production location and be distributed
via the Cable System to Subscribers in the Grantor. These cables,
wires, lines and other signal distribution equipment shall be collectively
known as the "Return Line."
(3)
Access Channels may also be used by Grantee, when such Channel
or Channels are not being used by Grantor for Access programming and
provided that such Channel usage is subject to Grantor approval and
displacement by Grantor upon 180 days' prior written notice to
the Grantee if there is demand to use the Access Channel.
(4)
The Grantee shall be responsible for the technical maintenance
and, signal quality of such Channels. Signal quality on such Channels
shall be commensurate with those which apply to the Grantee's
regular commercial Channels and the Grantee shall, upon request, provide
copies of FCC signal quality proofs of performance with respect to
those Channels.
f.
Access Channel Funding, Facilities, and Equipment.
(1)
The Grantee shall provide financial support permissible under
Applicable Law as an equipment replacement and facilities capital
grant payable by Grantee to Grantor to support the cost of facilities
and equipment for development of programming for playback on Access
Channels in the amount and payable in a manner described in a Franchise,
and may be itemized and passed through to the Subscribers. The Grantor
shall own and maintain all equipment purchased with equipment funding.
(2)
The Grantee will provide Access Channel support as specifically
agreed to in the Franchise Agreement; and to periodically inspect
and maintain the Return Line to ensure that the technical quality
of the retransmitted access programming signal meets FCC regulations.
The Grantee will not engage in any editorial control of the content
of programming on an Access Channel on the Cable System, except as
otherwise required or permitted by law. The Grantor shall be solely
responsible for the use of the Access Channels and shall indemnify
and hold harmless the Grantee from any and all claims, demands, actions
and damages (including attorney's fees) arising from the use
or operation of the Access Channels.
(3)
Use of a Channel position for Public, Educational, and/or Governmental
("PEG") access shall be provided on the most basic tier of service
offered by Grantee in accordance with the Cable Act, and a Franchise
Agreement.
(4)
Grantee shall insure that all Access Channels meet the technical
standards of the FCC; provided, however, Grantee shall not be responsible
for defects, flaws or other impairments in the Access Channel programming
delivered to Grantee and shall only be responsible for maintenance
for facilities and equipment under its control applicable to the playback
of programming on Access Channels of a Grantee's System.
(5)
If Grantee makes changes to its Cable System that necessitate
modifications to Access Channel(s) signal transmission facilities
and equipment (including but not limited to the upstream paths), Grantee
shall provide reasonable advance notice of such changes to the Grantor
and shall provide, at Grantee's expense, any additional or modified
headend facilities necessary to implement such modifications within
a reasonable period of time prior to the date that the System changes
are to be made.
(6)
Upon request by the Grantor, the Access Channels shall be made
available in digital formats comparable to commercial offerings at
the time Grantee converts 60% of its System to digital transmission.
[Ord. 1906, 8/4/2008]
a.
Open Books and Records. The Grantor shall have the right to inspect,
upon 30 days' written notice, at any time during normal business
hours at the System office all books, records, maps, plans, financial
statements that directly relate to the Franchise, Cable Service Complaint
logs ("trouble calls" that have generated a work order and/or necessitated
a response originating from the Grantor received during the prior
twelve-month period), performance test results, and other like materials
of Grantee that relate directly to the terms and conditions of the
Franchise. Said books and records shall be made available for inspection
at the local business office of Grantee. Upon proper request by a
Grantee and pursuant to the definition of Public Inspection of Records
herein, information obtained during such an inspection shall be treated
as confidential, making it available only to those persons who must
have access to perform their duties on behalf of the Grantor, including
but not limited to financial personnel, solicitor's office, and
members of the governing body, if it is proprietary in nature or within
the definitions of closed records contained within the Pennsylvania
Open Meetings Act, Sections 610.010, et seq., as amended from time
to time. To the extent any federal requirement for privacy applies
to the information to be submitted said law shall control.
b.
Communications with Regulatory Agencies. Copies of all petitions,
applications, communications and reports submitted by a Grantee or
on behalf of or relating to Grantee to the FCC or any other federal
or state regulatory commission or agency having jurisdiction in respect
to any matters affecting the System authorized pursuant to this Franchise
shall also be submitted to the Grantor upon written request. Copies
of responses from the regulatory agencies to Grantee shall likewise
be furnished to the Grantor within 30 days of receipt of the response.
c.
Annual Report. Upon written request, Grantee shall provide to the
Grantor within 30 days of such request:
(1)
A current financial statement for the immediately preceding
fiscal year including an income statement, statement of operating
expenses in detail, a cash flow statement and a balance sheet prepared
in accordance with generally accepted accounting principles and certified
by a financial officer of Grantee. Submission of the most recent U.S.
Securities and Exchange Commission Annual Report Form 10-K prepared
by Grantee shall be deemed as a satisfactory compliance of this section.
(2)
A description of all tiers or levels of service being offered
together with a description of any changes made in any service during
the reporting year.
(3)
A current copy of the Subscriber service information required
in this Ordinance.
(4)
A Trouble Call Report or compilation summarizing the Complaints
received during the reported year by category, number for each category
and a discussion of any unresolved Complaints.
(5)
A certification of the Gross Revenues derived from the Grantor
area, for the preceding year by the financial representative of the
company or alternatively, an independent certified public accountant.
(6)
A description of how pay-per-view, on-demand, and other programming
is made available to Basic Service only Subscribers.
(7)
A description of services, including modifications, upgrades,
or increases in Channel capacity.
In any request for information pursuant to this section, the
Grantor shall specifically identify the information to be provided
by Grantee to the Grantor.
d.
Additional Reports. Grantee shall prepare and furnish to the Grantor,
at the times and in the form prescribed, such additional reports,
which are deemed by the parties as reasonably necessary for the administration
and enforcement of this Ordinance and a Franchise.
e.
Maps. Grantee shall maintain on file with the Grantor at all times
a current map or set of maps, either via paper or electronic format,
drawn to scale showing the location of the System and all equipment
installed or in place in Rights-of-Way and other public places. The
maps shall be updated and made available in accordance with § 7-305b,
hereinabove.
f.
Audit. The Grantor and their agents and representatives shall have
the authority, during normal business hours, to arrange for and conduct
an inspection of the books and records of Grantee related to the payment
of the franchise fee. Grantee shall first be given 30 days' written
notice of the audit request, the description of and purpose for the
inspection and description, to the best of the Grantor's ability.
To the extent such books, records or documents contain confidential
information as defined in § 7-308a of this Ordinance, such
confidential information may not be disclosed, as described in § 7-308a.
g.
Periodic Evaluation, Review and Modification. The field of Cable
Service and technology is a relatively new and rapidly changing one
which may see many regulatory, technical, financial, marketing and
legal changes during the term of a Franchise Agreement. Therefore,
in order to provide for a maximum degree of flexibility in a Franchise,
and to help achieve a continued advanced and modern Cable System,
the following evaluation provisions will apply:
(1)
The Grantor may require, at its sole discretion upon 45 days'
written notice, evaluation sessions at any time during the term of
a Franchise; provided, however, there shall not be more than one evaluation
session during any three calendar years.
(2)
Topics which may be discussed at any evaluation session include,
but are not limited to Grantee's ability to comply with the legal,
financial, and technical requirements of the Franchise; and meet the
cable-related needs of the community, and any other cable-related
topics the Grantor or a Grantee deem relevant.
(3)
During an evaluation session, a Grantee shall fully cooperate
with the Grantor and shall provide without cost such information and
documents as the Grantor may request to perform the evaluation. To
the extent such information or documents contain confidential information
as defined in § 7-308a of this Ordinance such confidential
information may not be disclosed.
(4)
If at any time during its evaluation, the Grantor determines
that a historical record of evidence exists of Cable System performance
which fails to meet the requirements of this Ordinance, the Grantor
may require a Grantee to perform tests and analysis directed toward
such suspected inadequacies at a Grantee's expense. A Grantee
shall fully cooperate with the Grantor in performing such testing
and any report prepared by a Grantee shall include at least:
(a)
A description of the problem in the Cable System performance
which precipitated the special tests.
(b)
The Cable System component tested.
(c)
The equipment used and procedures employed in testing.
(d)
The method, if any, by which the Cable System performance problem
was resolved.
(e)
If, after receiving a Grantee's report, the Grantor determines
that reasonable evidence still exists of inadequate Cable System performance,
the Grantor may enlist an independent engineer to perform tests and
analysis directed toward such suspected failures to meet the requirements
of this franchise. A Grantee shall be a witness to and cooperate and
permit said testing.
(5)
As a result of a periodic review and evaluation session, the
Grantor or a Grantee may determine that a change in the terms of the
Franchise should be required to meet the cable-related needs of the
community, as determined by the Grantor's governing body, that
the Cable System or Franchise requirements should be updated, changed,
revised, or that additional Cable Service should be provided and that
to provide same would be technically and economically feasible. If
the change is consistent with the terms of this Ordinance or the Franchise,
the needs of the Grantor, and is technically and economically feasible
as determined following an evaluation of a Grantee's financial
condition, length of term remaining on the franchise, economic waste,
if any, that would occur should the terms be changed, and rate of
return on the investment within the community, the parties will in
good faith, review the terms of the proposed change and any amendment
to this Ordinance or a Franchise. Based on this review, and upon adoption
of such a change or new requirement through a mutually agreed upon
and acceptable amendment, the change will become effective.
[Ord. 1906, 8/4/2008]
a.
Approval of Changes. The Grantor reserves the right to regulate rates
for Basic Service and any other services offered over the Cable System,
to the extent provided by federal or state law. In accordance with
the Cable Act, Grantee shall maintain on file with the Grantor at
all times a current schedule of all rates and charges.
b.
Subscriber Complaint Practices. At all times, a Grantee shall meet
the requirements of the Federal Communications Commission regulations
on Consumer Complaints and Protection. However, at a minimum and in
accordance with 47 C.F.R. § 76.309, as amended, a Grantee
shall comply with the following:
(1)
A Grantee shall maintain a conveniently-located local office
within the CACC service area which shall be open during normal business
hours. This office shall accept payments, handle adjustments to subscriber
bills, respond to installation, repair, and/or maintenance requests
and other service calls. A Grantee shall have a toll-free telephone
number available at all times (an access line which will be available
to its subscribers 24 hours-a-day, seven days-a-week). Trained company
representatives shall be available to respond to customer telephone
inquiries during normal business hours. Except in situations beyond
its control, the Grantee must begin working on a service interruption
or other service problems no later than 24 hours after being notified
of the problem. If the problem cannot be resolved within 24 hours,
the customer shall be entitled upon request to a credit for one day's
service for each day of the outage. Under normal operating conditions,
telephone answer time by a customer representative, including wait
time, shall not exceed 30 seconds when the connection is made, and
the customer will receive a busy signal less than 3% of the time.
If the call needs to be transferred, transfer time shall not exceed
30 seconds. These standards shall be met no less than 90% of the time
under normal operating conditions, measured on a quarterly basis.
A Grantee shall not be required to acquire equipment or perform surveys
to measure compliance with these standards unless an historical record
of complaints indicates a clear failure to comply. After Normal Business
Hours, the access line may be answered by a service or an automated
response system.
(2)
A Grantee may impose a charge reasonably related to a Grantee's
actual cost incurred for a downgrade of service, except that no such
charge may be imposed when:
(3)
A Grantee shall render efficient service, make repairs promptly
and interrupt Cable Service only for good cause and for the shortest
time possible. Such interruptions shall occur during periods of minimum
use of the Cable System.
(4)
A Grantee shall maintain adequate telephone lines and Personnel
to respond in a timely manner to schedule service calls and answer
Subscriber Complaints or inquiries as required by this § 7-309b.
(5)
Subscriber requests for repairs of service interruptions shall
be responded to by a trained customer service representative on the
next business day. A Grantee shall use best efforts to begin working
on service interruptions promptly and in no event later than 24 hours
after the interruption becomes known. A Grantee shall begin actions
to correct other service problems the next business day after notification
of the service problem.
(6)
Subscriber requests for maintenance or repairs received on Saturdays
or Sundays shall be responded to by a customer service representative
on the next business day. A Grantee shall use its best efforts to
begin working on service interruptions promptly and in no event later
than 24 hours after the interruption becomes known. Grantee shall
begin actions to correct other service problems the next business
day after notification of the service problem.
(7)
Service calls for maintenance or repair shall be performed in
accordance with the standards established by the FCC.
(8)
A Grantee shall maintain an "appointment window" alternative
for installations, service calls and other installation activities
that will be either a specific time or, at maximum, a four hour time
block during normal business hours. A Grantee shall not cancel an
appointment with a customer after the close of business on the business
day prior to the scheduled appointment. If a customer service representative
is running late for an appointment with a customer and will not be
able to keep the appointment as scheduled, the customer shall be contacted.
The appointment shall be rescheduled, as necessary, at a time which
is convenient for the customer.
c.
Installation. A Grantee shall make service available to all Grantor residents based on the terms and conditions outlined in § 7-305 of this Ordinance.
d.
Subscriber Information.
(1)
A Grantee shall provide to all new Subscribers and, at least
once a year, to existing Subscribers, and upon request of a subscriber,
written Subscriber service information which shall include, but not
be limited to, the following:
(a)
Products and services offered by Grantee;
(b)
Prices and options for programming services, including programming
carried on the System such that the programming information corresponds
to Channel positioning;
(c)
Channel positions and programming carried on the Cable System;
(d)
Installation policy and service maintenance and termination
procedures;
(e)
Billing and complaint procedures including Grantee's Address,
Telephone Number and Office hours; and
(f)
Instructions on how to use the Cable Service and any converters.
(2)
A Grantee shall notify Subscribers and the Grantor no less than
30 days in advance of any changes in rates, programming services,
or Channel positions, provided such change is within the control of
the Grantee. Grantee shall not be required to provide prior notice
to Subscribers of any rate change that is the result of a regulatory
fee, franchise fee or any other fee, tax, assessment or charge of
any kind imposed by any federal agency, the Commonwealth of Pennsylvania
or the Grantor on the transaction between the Grantee and the Subscriber.
e.
Subscriber Billing Practices.
(1)
As mentioned herein above, Grantee shall notify each of its
existing Subscribers at least once a year, all new Subscribers, and
upon request of a Subscriber, of its billing practices in accordance
with FCC rules. Bills shall be clear, concise and understandable.
Bills must be fully itemized, with itemizations including, but not
limited to, Basic Service and Premium tier service charges, if applicable,
equipment charges and any installation or repair charges. Bills shall
state the billing period, including an effective due date, the amount
of current billing and any relevant credits or past due balances.
Grantee shall not assess late fees for non-payment of a current bill
until at least 30 days have elapsed since the mailing of the bill
by Grantee.
(2)
As mentioned herein above, Subscribers shall be notified of
any changes in rates, programming services or Channel positions as
soon as possible through announcements on the Cable System and/or
in writing. Notice must be given to subscribers a minimum of 30 days
in advance of such changes if the change is within the Grantee's
control.
(3)
The Subscriber bill shall contain the following information
presented in plain language and format:
(a)
Name and address of Grantee;
(b)
The period of time over which each chargeable service is billed
including prorated periods as a result of the establishment and termination
of service;
(c)
A fully itemized list of charges levied for programming services,
equipment provided, and other services or items offered, and a report
of all activity during the billing period, including optional charges,
rebates and credits;
(d)
The amount of the bill for the current billing period, separate
from any balance;
(e)
A Grantee's telephone number and a statement that the Subscriber
may call this number with any questions about the bill; and
(f)
The date on which payment is due from the Subscriber.
(4)
The account of a Subscriber shall not be considered delinquent
until at least 30 days have elapsed from the due date of the bill,
which shall be a date certain. The following provisions shall apply
to the imposition of late charges on Subscribers:
(a)
A Grantee shall not impose a late charge on a Subscriber unless
a Subscriber is delinquent, and Grantee has given the Subscriber written
notice of the delinquency.
(b)
A late charge of reasonable amount may be imposed monthly.
(c)
No late charge may be assessed on the amount of a bill in dispute
if found in favor of the Subscriber.
(d)
Any charge for returned checks shall be reasonably related to
the costs incurred by a Grantee in processing such checks.
(5)
In case of a billing dispute, a Grantee shall respond to a written
complaint from a Subscriber within 30 days. Refund checks shall be
issued promptly, but no later than either the customer's next
billing cycle following resolution of the request or 30 days, whichever
is earlier, or the return of the equipment supplied by the cable operator
if service is terminated. Credits for service shall be issued no later
than the customer's next billing cycle following the determination
that a credit is warranted.
f.
Mobility-Limited Subscribers. Unless otherwise agreed in a Franchise
Agreement, upon the request of mobility-limited Subscribers, a Grantee
shall make a good faith effort to arrange for delivery, pickup or
exchange or replacement of converters or other equipment at the Subscriber's
address or by the use of a satisfactory equivalent means such as provision
of a pre-paid postage mailer.
g.
Dispute Resolution.
(1)
Every Grantee shall establish procedures for receiving, acting
upon, and resolving customer complaints, and crediting customer accounts,
without intervention by the Grantor.
(2)
The Grantee's complaint procedure shall be filed with the
Grantor prior to its Acceptance of a new or renewed Franchise.
(3)
The Grantee's investigation of a Subscriber complaint shall
be concluded in no more than 30 days after receiving a written complaint,
at which time the Grantee shall notify the Subscriber of the results
of its investigation and its proposed action or credit.
(4)
In the event of a billing dispute, Grantee shall notify the
Subscriber in full accordance with FCC customer service regulations
regarding billing and complaint procedures and provide the address
and telephone number of Grantor's cable office.
h.
Scrambling of Cable Channels. In accordance with Sections 640 and
641 of the Cable Act, Grantee shall fully scramble or block the audio
and video programming of a channel upon request by a cable service
Subscriber without charge.
[Ord. 1906, 8/4/2008]
a.
Payment to Grantor.
(1)
As compensation for any Franchise granted pursuant to this Ordinance,
a Grantee for a Cable System located in the Rights-of-Way, unless
negotiated in a Franchise Agreement, shall have the following obligations:
(a)
Application Fee for Initial Franchise. In addition to all other
fees, permits or charges required by the Grantor, an Applicant for
an initial franchise shall pay to Grantor at the time of Application,
or amendment to its Application, $1,000 as a deposit on the application
fee. An Applicant will be assessed an additional application fee at
the end of the review process should the Grantor's actual costs
of reviewing the application exceed the deposit. This fee will be
equal to 100% of Grantor's costs (including administration overhead,
legal, consulting, etc.) for administrating the Application and granting
a Franchise. Any unused portion of the deposit shall be returned to
the Applicant.
(b)
Franchise Fees. Any Grantee subject to the terms of this Ordinance
and a Franchise Agreement shall, in addition to any other fees, permits,
or charges by Grantor, commence making payment of franchise fees on
the effective date of a Cable Services Franchise Agreement or if such
Grantee is already providing Cable Services over the Cable System,
on the date of the passage of this Ordinance. Commencing on the specified
date, a Grantee subject to the terms of this Ordinance, shall pay
to Grantor an amount equal to 5% of its Gross Revenues for the provision
of Cable Services as defined in this Ordinance and generally in the
form as illustrated in Exhibit A, attached and made part of this Ordinance
by reference.[1]
[1]
Editor's Note: Exhibit A, Franchise Fee Payment Worksheet, is included as an attachment to this chapter.
(2)
Payments due the Grantor under this provision shall be computed
at the end of each calendar year quarter. Payments shall be due and
payable for each quarter not later than 45 days from the last day
of the three-month period. Specifically, payments shall be due and
payable on or before May 15 (for the first quarter), August 15 (for
the second quarter), November 15 (for the third quarter), and February
15 for the fourth quarter). Each payment shall be accompanied by a
brief report showing the basis for the computation and such other
relevant facts related to the payment of the franchise fee as may
be required by the Grantor. At request of Grantor, and if agreed to
by Grantee, payments will be made electronically.
(3)
No acceptance of any payment shall be construed as an accord
that the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the Grantor
may have for further or additional sums payable under the provisions
of this Franchise. All amounts paid shall be subject to audit and
re-computation by the Grantor.
(4)
In the event any payment is not made on the due date, interest
on the amount due shall accrue from such date at the annual rate of
6%.
(5)
If a Grantee offers bundled, tied, or combined Cable Services
(which are subject to the Franchise Fee) with non-cable services (which
are not subject to the Franchise Fee) to individual Subscribers, the
combined revenues from such bundled services shall be allocated consistent
with the rates or prices advertised by the Grantee through its marketing
materials or on its published rate card.
If the Grantee does not advertise or publish separate prices
for the combined services, the percentage that the price for the combined
services is discounted from the regular retail rates of the individual
services shall be pro-rated across all the services in the bundled
package.
As an example, a Grantee may offer a "bundle" of video, data,
and voice services for a flat fee of $75 where the retail rate for
the services purchased on an individual basis would equal $100. The
Grantee would apply a 25% discount to the revenue derived from each
service. Thus, if the retail rate for the Cable Service in the bundle
were $50, Grantee would recognize Cable Service revenue in the amount
of $37.50 and pay a franchise fee on that revenue.
In no event shall Grantee be permitted to evade or reduce applicable
franchise fee payments required to be made to Grantor due to discounted
bundled services.
b.
Application of Franchise Fees and Other Fees and Charges.
(1)
Grantee acknowledges and agrees that the Franchise Fees payable
by Grantee to Grantor shall not be deemed to be in the nature of a
tax, and shall be in addition to any and all taxes of general applicability
and other generally applicable fees and charges which Grantee may
be required to pay to Grantor and/or to any other governmental authority,
all of which shall be separate and distinct obligations of Grantee.
(2)
Grantee shall not deduct all or any part of the Franchise Fees
or other payments or in-kind contributions to be made by Grantee to
Grantor pursuant to this Ordinance and/or a Franchise from the Franchise
Fees paid thereunder unless specifically agreed to in a Franchise
Agreement.
c.
Performance Bond.
(1)
Except as may be described in a Franchise, at the time a Franchise
is accepted, a Grantee shall furnish and file with the Grantor a performance
bond. The performance bond shall run to the Grantor in the sum of
as then determined in the Franchise Agreement. The performance bond
shall be conditioned upon the faithful performance of Grantee of all
terms and conditions of this Ordinance and a Franchise. The rights
reserved to the Grantor with respect to the performance bond or other
security are in addition to all other rights the Grantor may have
under a Franchise or any other Applicable Law. The company providing
such performance bond must be licensed to do business in the Commonwealth
of Pennsylvania.
(2)
The rights reserved by the Grantor with respect to the performance
bond are in addition to all other rights the Grantor may have under
a Franchise or other Applicable Law.
(3)
The performance bond shall be subject to the approval of the
Grantor.
d.
Security Fund.
(1)
Except as otherwise described in a Franchise, at the time a
Franchise is accepted, and, in lieu of a performance bond as required
herein above, a Grantee shall deposit into a bank account, established
by the Grantor, and maintain on deposit through the term of this Franchise,
the sum of $10,000, unless otherwise provided in a Franchise Agreement,
as a common security fund for the faithful performance by it of all
the provisions of this Ordinance, the Franchise and compliance with
all orders, permits and directions of the Grantor and the payment
by a Grantee of any claim, liens, costs, expenses and taxes due the
Grantor which arise by reason of the construction, operation or maintenance
of the Cable System. Interest on this deposit shall be paid to Grantee
by the bank on an annual basis.
(2)
Provision shall be made to permit the Grantor to withdraw funds
from the security fund. Grantee shall not use the security fund for
other purposes and shall not assign, pledge or otherwise use this
security fund as security for any purpose. The Grantor reserves the
right to increase the required amount of the security fund to match
changes in the Consumer Price Index for All Items and All Urban Consumers.
(3)
If a Grantee fails to pay to the Grantor any amounts due and
unpaid to Grantor; or fails to pay to the Grantor any liquidated damages,
costs or expenses which the Grantor shall be compelled to pay by reason
of any act or default of a Grantee in connection with this Ordinance
and a Franchise, the Grantor may then withdraw such funds from the
security fund. Payments are not franchise fees as required in § 7-310a,
or as otherwise described in a Franchise Agreement.
e.
Procedure for Imposition of Penalties.
(1)
If the Grantor is able to demonstrate that Grantee violated
any provision of this Ordinance or Franchise Agreement, it shall promptly
notify Grantee in writing of the nature of such violation and the
section of this Ordinance or Franchise Agreement that it believes
has been violated. If the Grantor does not notify Grantee of any violation
of this Ordinance or Franchise Agreement, it shall not operate as
a waiver of any rights of the Grantor hereunder or pursuant to Applicable
Law.
(2)
Grantee shall have 45 days to cure such violation after written
notice is received by taking appropriate steps to comply with the
terms of this Ordinance or Franchise Agreement. If the nature of the
violation is such that, in the Grantor's reasonable judgment,
it cannot be fully cured within 45 days due to circumstances outside
of Grantee's control, the period of time in which Grantee must
cure the violation may be extended by the Grantor in writing for such
additional time necessary to complete the cure, provided that Grantee
shall have promptly commenced to cure and is diligently pursuing its
efforts to cure in the reasonable judgment of the Grantor.
(3)
If the violation has not been cured within the time allowed
under § 7-310e(2) of this Ordinance, then Grantee shall
be liable for liquidated damages in accordance with § 7-310f
of this Ordinance.
f.
Liquidated Damages and Opportunity to Cure.
(1)
Because Grantee's failure to comply with provisions of
this Ordinance or Franchise Agreement may result in harm to the Grantor
and because it will be difficult to measure the extent of such harm,
the Grantor may assess liquidated damages against Grantee in the following
amounts provided Grantee has had an opportunity to cure in accordance
with § 7-310e(2) of this Ordinance. Such damages shall not
be a substitute for specific performance by Grantee, but shall be
in addition to such performance.
(2)
The first day for which liquidated damages may be assessed,
if there has been no cure after the end of the applicable cure period,
shall be the day after the end of the applicable cure period, including
any extension of the cure period granted by the Grantor. Liquidated
damages may not be assessed for a time period exceeding 120 days,
after which the Grantor may initiate an action in law or equity in
a court of competent jurisdiction.
(3)
The Grantor may assess liquidated damages against Grantee in
the following amounts provided Grantee has had an opportunity to cure
in accordance with § 7-310e(2) of this Ordinance:
(a)
For failure to provide and maintain Cable Service as required:
$200 per day for each day the violation continues;
(b)
For failure to obtain and maintain permits as required: $200
per day for each day the violation continues;
(c)
For failure to give notices required in this Ordinance or Franchise
to Grantor as required: $200 per day for each day the violation continues;
(d)
For failure to comply with any customer service provisions as
required: $200 per day for each day the violation continues;
(e)
For failure to submit reports in a timely fashion as required:
$150 per day for each day the violation continues; and
(f)
For failure to comply with any material provision of the Franchise:
$150 per day for each day the violation continues.
g.
Liability Insurance.
(1)
A Grantee shall maintain, throughout the term of a Franchise
Agreement and as may be further described therein, liability insurance
with a company licensed to do business in the Commonwealth of Pennsylvania
with a rating by A.M. Best of not less than "A-minus VII," insuring
Grantee and the Grantor with regard to all damages mentioned in paragraph
A of § 7-310f of this Ordinance, in the minimum amounts
of:
(2)
At the time of acceptance of a Franchise, and upon request,
Grantee shall furnish to the Grantor a certificate evidencing that
a satisfactory insurance policy has been obtained. Said certificate
shall be approved by the Grantor and such insurance policy shall require
that the Grantor be notified 30 days prior to any expiration or cancellation.
(3)
All insurance policies maintained pursuant to this § 7-310g
shall contain the following or similar endorsement:
"Should any of the policies described herein be canceled before
the expiration date thereof, the insurer affording coverage will endeavor
to mail 30 days' written notice to the certificate holder named
herein, but failure to mail such notice shall impose no obligation
or liability of any kind upon the insurer affording coverage, its
agents, or representatives, or the insurer of this certificate."
(4)
A Grantee will replace such insurance to conform to this Ordinance
by promptly filing evidence of proof of insurance with Grantor before
termination of any existing insurance.
h.
Grantor's Right to Revoke. In addition to all other rights which
the Grantor has pursuant to law or equity, the Grantor reserves the
right to initiate revocation proceedings, and all rights and privileges
pertaining thereto, in the event that:
(1)
It is demonstrated that Grantee substantially and materially
violated any material provision of this Franchise or state, federal
or local law applicable to Grantee's operation of a Cable System
within Grantor.
(2)
It is demonstrated that Grantee repeatedly violates, after notice
and opportunity to cure, any of the material provisions of the Franchise
or provision of valid applicable state, federal or local law and refuses
to cure it.
(3)
A Grantee is found to have practiced any fraud or deceit upon
the Grantor or Subscriber.
(4)
A Grantee is found to have knowingly misrepresented a material
fact in the application for, negotiation of, renegotiation of, or
renewal of the Franchise.
i.
Revocation Procedures. In the event that the Grantor determines that
a Grantee has violated any material event as set forth in § 7-310h
of this Ordinance, or any generally applicable material federal, state
or local law, the Grantor may make a written demand on a Grantee that
it remedy such violation and that continued violation may be cause
for revocation. If the violation, breach, failure, refusal, or neglect
is not remedied to the satisfaction of the Grantor within 45 days
following such demand, the Grantor shall determine whether or not
such violation, breach, failure, refusal or neglect by Grantee is
due to acts of God or other causes which result from circumstances
beyond Grantee's control.
(1)
The Grantor may schedule a public hearing and Grantee shall
be provided with an opportunity to be heard. This opportunity shall
include the ability to introduce evidence, to question witnesses and
to respond to any notice of grounds to terminate in accordance with
the standards of a fair hearing applicable to administrative hearings
in the Commonwealth of Pennsylvania. The causes for pending revocation
and the reasons alleged to constitute such cause shall be recited
in a notice to a Grantee prior to the public hearing. Said notice
shall affirmatively recite the causes that need to be shown by the
Grantor to support a revocation. All notice requirements shall be
met by providing Grantee at least 45 days' prior written notice
(via certified mail - return receipt requested) of any public hearing
concerning the proposed revocation of a Franchise.
(2)
If notice is given and after a public hearing is held, the Grantor
determines there is a violation, breach, failure, refusal or neglect
by a Grantee, the Grantor shall state in writing the grounds for its
decision and give notice to a Grantee to correct or remedy the same
within such reasonable additional time, in such manner and upon such
reasonable terms and conditions as Grantor may direct.
(3)
If after a public hearing or hearing by a hearing officer, designated
by Grantor, it is determined that a Grantee's performance of
any of the terms, conditions, obligations, or requirements of Franchise
was prevented or impaired due to any cause beyond its reasonable control
or not reasonably foreseeable, such inability to perform shall be
deemed to be excused and no penalties or sanctions shall be imposed
as a result thereof, provided Grantee has notified Grantor in writing
within 30 days of its receipt of notice of the breach of said cause.
Such causes beyond a Grantee's reasonable control or not reasonably
foreseeable shall include, but shall not be limited to, acts of God,
civil emergencies and labor strikes.
(4)
If, after notice is given and opportunity to cure, at a Grantee's
option, a public hearing is held, the Grantor determines there was
a violation, breach, failure, refusal or neglect, then the Grantor
may declare, by formal resolution, a Franchise revoked and cancelled
and of no further force and effect unless there is compliance within
such period as Grantor may fix, such period not to be less than 30
days provided no opportunity for compliance need be granted for fraud
or misrepresentation.
(5)
The issue of revocation shall automatically be placed upon the
agenda of the Grantor's governing body at the expiration of the
time set by it for compliance. The Grantor then may terminate a Franchise
forthwith upon finding that a Grantee has failed to achieve compliance
or may further extend the period, in its discretion.
(6)
If the Grantor, after notice is given and, at a Grantee's
option, a full public proceeding is held and appeal is exhausted,
declares a Franchise breached, the parties may pursue their remedies
pursuant to a Franchise or any other remedy, legal or equitable.
[Ord. 1906, 8/4/2008]
a.
Foreclosure. Upon the foreclosure or other judicial sale of the System,
Grantee shall notify the Grantor of such fact and such notification
shall be treated as a notification that a change in control of Grantee
has taken place, and the provisions of this Franchise governing the
consent to transfer or change in ownership shall apply without regard
to how such transfer or change in ownership occurred.
b.
Abandonment. Grantee may not abandon any portion of the Cable System
thereof without having first given three months' written notice
to the Grantor. Grantee may not abandon any portion of the Cable System
without compensating the Grantor for damages resulting from the abandonment.
[Ord. 1906, 8/4/2008]
a.
Removal After Revocation or Denial of Renewal.
(1)
Upon denial of renewal of a Franchise, or upon its revocation,
as provided for, the Grantor shall have the right to require a Grantee
to remove within two years, at a Grantee's expense, all or any
portion of the Cable System from all Rights-of-Way and Public Property
within the Grantor. In so removing the Cable System, a Grantee shall
refill and compact at its own expense, any excavation that shall be
made and shall leave all Rights-of-Way, Public Property and private
property in as good a condition as that prevailing prior to Grantee's
removal of the Cable System, and without affecting, altering or disturbing
in any way electric, telephone or utility, cables wires or attachments.
The Grantor, or its delegation, shall have the right to inspect and
approve the condition of such Rights-of-Way and Public Property after
removal. Under no circumstance including, without limitation, revocation,
or denial of renewal of a Franchise or any other action to forbid
or disallow Grantee from providing Cable Services, shall Grantee or
its assignees be required to sell any right, title, interest, use
or control of any portion of Grantee's facilities including,
without limitation, the Cable System and any capacity used for Cable
Service or otherwise, to the Grantor or any third party. Grantee shall
not be required to remove or to relocate the plant that facilitates
Internet access, digital voice, or other such services not governed
by Title VI of the Communications Act of 1934, as amended, or any
portion thereof as a result of revocation, denial of renewal or any
other action to forbid or disallow Grantee from providing Cable Services.
(2)
Except as otherwise provided in paragraph (1) of this section,
if a Grantee has failed to complete such removal within the time given
under § 7-312a(1) of this Ordinance, after written notice
of the Grantor's demand for removal is given, the Grantor shall
have the right to exercise one of the following options:
(a)
Declare all right, title and interest to the Cable System to
be in the Grantor or its delegator with all rights of ownership including,
but not limited to, the right to operate the Cable System or transfer
the Cable System to another for operation by it; or
(b)
Declare the Cable System abandoned and cause the Cable System,
or such part thereof as the Grantor shall designate, to be removed
at no cost to the Grantor. The cost of said removal shall be recoverable
from the security fund, indemnity and/or penalty section provided
for in a Franchise, or from a Grantee directly.
b.
Sale or Transfer of Franchise.
(1)
A Franchise shall not be sold, assigned or transferred (including
through inheritance), either in whole or in part, used as collateral
for any loan or loans, or leased or sublet in any manner, nor shall
title thereto, either legal or equitable, or any right, interest or
property therein, pass to or vest in any Person without full compliance
with the procedure set forth in this section.
(2)
Neither Grantee nor its parent nor any Affiliated Entity shall
transfer, assign or otherwise encumber, through its own action or
by operation of law, its right, title or interest in the Cable System
or in a Franchise Agreement without the prior written consent of the
Grantor. Neither Grantee nor its parent nor any Affiliated Entity
shall sell, convey, transfer, exchange or release more than 50% of
its equitable ownership in the Cable System without the prior written
consent of the Grantor. No such consent shall be required for (i)
a transfer in trust, by mortgage, hypothecation, or by assignment
to a financial institution of any rights, title or interest of Grantee
in the Franchise or in the Cable System in order to secure indebtedness;
or (ii) a transfer to an entity owned and/or controlled by Grantee.
(a)
The parties to the sale or transfer shall make a written request
to the Grantor for its approval of a sale or transfer. The written
request shall not be deemed complete until all information required
by the Grantor in accordance with applicable FCC regulations is provided
to the Grantor. Upon receipt of a complete written request with all
application information - including the legal, financial and technical
qualifications of the transferee, the Grantor shall have 120 days
to grant or deny such approval. Within 30 days of the request, in
accordance with FCC rules and regulations, notify the Grantee in writing
of the additional information, if any, it requires to determine the
legal, financial and technical qualifications of the transferee or
new controlling party.
(b)
The Grantor shall reply in writing within 30 days of the request
and shall exercise its determination that a public hearing is necessary.
(c)
If a public hearing is deemed necessary pursuant to § 7-312b(2)(b)
above, such hearing shall be commenced within 30 days of such determination
and notice of any such hearing shall be given 14 days prior to the
hearing by publishing notice thereof. The notice shall contain the
date, time and place of the public hearing and shall briefly state
the substance of the action to be considered by the Grantor.
(d)
Within 30 days after the closing of the public hearing, the
Grantor shall approve or deny in writing the sale or transfer request.
If the Grantor has not taken final action on the Grantee's request
for consent within 120 days after receiving such request, consent
shall be deemed granted.
(e)
Any consent by the Grantor for any transfer described above
shall not be effective until the proposed transferee or assignee shall
have executed a legally binding agreement stating that it shall be
bound by all the terms and conditions contained in the Franchise.
c.
Purchase by Grantor Upon Denial of Renewal or Revocation.
(1)
Upon lawful denial of renewal or revocation of Franchise, the
Grantor may, in lawful manner and upon the payment of fair market
value, mutually determined Grantor and Grantee, lawfully obtain, purchase,
condemn, acquire, take over and hold the Cable System.
(2)
Upon the revocation of a Franchise, the Grantor may in lawful
manner and upon the payment of an equitable price lawfully obtain,
purchase, and condemn, in accordance with such proceedings governed
by federal and/or state law, take over and hold the Cable System.
[Ord. 1906, 8/4/2008]
a.
Unfair Discriminatory Practices Prohibited. In the performance of
a Franchise, a Grantee shall not discriminate unfairly against any
person on the ground of or because of race, creed, color, national
origin or ancestry, gender, religion or political opinion or affiliation,
income of residents in any area of the Grantor, or age. A Grantee
shall comply at all times with all other valid applicable federal,
state and local laws, and all federal and state executive and administrative
orders relating to non-discrimination.
b.
Subscriber Privacy.
(1)
Absent a court order or requirement of federal or state law,
no Signal of a Channel may be transmitted from a Subscriber terminal
for purposes of monitoring individual viewing patterns or practices
without the express written permission of the Subscriber; provided,
however, that Grantee may conduct system-wide or individually addressed
"sweeps" solely for the purpose of verifying system integrity, checking
for illegal taps, controlling return-path transmission, billing for
pay services or monitoring Channel usage in a manner not inconsistent
with the federal law. Grantee shall not record or retain any information
transmitted between a Subscriber and any third party, except as required
for lawful business purposes. The request for such permission shall
be contained in a separate document with a prominent statement that
the Subscriber is authorizing the permission in full knowledge of
its provisions. Such written permission shall be for a limited period
of time not to exceed one year which shall be renewed at the option
of the Subscriber. No penalty shall be invoked for a Subscriber's
failure to provide or renew such authorization. The authorization
shall be revocable at any time by the Subscriber without penalty of
any kind whatsoever. Such permission shall be required for each type
or classification of cable communications activity planned for the
purpose of monitoring individual viewing patterns or practices.
(2)
No information or data obtained by monitoring transmission of
a Signal from a Subscriber terminal, or any other means, including
but not limited to, lists of the names and addresses of such Subscribers
or any lists that identify the viewing habits of Subscribers shall
be sold or otherwise made available to any party other than to a Grantee
and its employees for internal business use, and also to the Subscriber
subject of that information, unless a Grantee has received specific
written authorization from the Subscriber to make such data available.
(3)
Compliance with the Cable Act, Section 631, shall be deemed
compliance with this § 7-313b of this Ordinance.
[Ord. 1906, 8/4/2008]
a.
Compliance with Laws. A Grantee and the Grantor shall act reasonably
and in good faith, deal fairly, and cooperate with each other to enable
performance of all obligations under this Ordinance and achievements
of the expected benefits. A Grantee shall conform to all Grantor ordinances,
resolutions, rules and regulations heretofore or hereafter adopted
or established during the entire term of a Franchise Agreement which
conform with generally applicable Grantor ordinances.
b.
Continuity of Service Mandatory. Upon revocation or lawful denial
of renewal of a Franchise Agreement, the Grantor may require a Grantee
to continue to operate the Cable System for an extended period of
time not to exceed six months. A Grantee shall, as trustee for its
successor in interest, continue to operate the Cable System under
the terms and conditions of a Franchise Agreement. In the event a
Grantee does not so operate the Cable System, the Grantor may take
such steps as it, in its sole discretion, deems necessary to assure
continued service to Subscribers.
c.
Work Performed by Others.
(1)
All provisions of this Franchise shall remain the responsibility
of a Grantee, and a Grantee shall be responsible for and hold the
Grantor harmless for any claims or liability arising out of work performed
by Persons other than a Grantee in accordance with § 7-302h
of this Ordinance. The Grantee shall further provide all emergency
contact information (name, address, phone number, etc.) for Grantee
employee responsible for said entity.
(2)
All provisions of this Ordinance and a Franchise shall apply
to any subcontractor or others performing any work or services pursuant
to the provisions of a Franchise.
d.
Compliance with Federal, State and Local Laws.
(1)
Conflict of Law. If any federal, state or local law or regulation
requires or permits a Grantee or the Grantor to perform any service
or act or shall prohibit a Grantee or the Grantor from performing
any service or act which may be in conflict with the terms of a Franchise,
then as soon as possible following knowledge thereof, Grantor and
a Grantee may by mutual agreement and in accordance with such change
in law, modify a Franchise Agreement.
(2)
Severability. If any term, condition or provision of this Ordinance
or a Franchise or the application thereof to any Person or circumstance
shall, to any extent, be rendered invalid or unenforceable as in conflict
with any law, rule or regulation of a superior governmental body,
the remainder hereof and the application of such term, condition or
provision to Persons or circumstances other than those as to whom
it shall be held invalid or unenforceable shall not be affected thereby,
and this Ordinance and a Franchise and all the terms, provisions and
conditions thereof shall, in all other respects, continue to be effective
and to be complied with. In the event that such law, rule or regulation
is subsequently repealed, rescinded, amended or otherwise changed
so that the provision which had been held invalid or modified is no
longer in conflict with the law, rules and regulations then in effect,
said provision shall thereupon return to full force and effect and
shall thereafter be binding on a Grantee and the Grantor.
(3)
In the event that any court or other authority of competent
jurisdiction declares any section, provision or clause of this Ordinance
and a Franchise to be unlawful, invalid or unenforceable, or is preempted
by federal or state laws or regulations, such section, provision or
clause shall be deemed to be severable from the remaining portions
of this Agreement and shall not affect the legality, validity or enforceability
of the remaining portions of this Agreement.
e.
Non-Enforcement by Grantor. A Grantee shall not be relieved of its
obligation to comply with any of the provisions of this Ordinance
or a Franchise by reason of any failure of the Grantor to enforce
prompt compliance.
f.
Administration of a Franchise.
(1)
The Grantor or its designee shall have continuing regulatory
jurisdiction and supervision over the Cable System and a Grantee's
operation under a Franchise.
(2)
A Grantee shall construct, operate and maintain the Cable System
subject to the supervision of all the authorities of the Grantor who
have jurisdiction in such matters and in strict compliance with all
Applicable Laws, ordinances, departmental rules and regulations affecting
the Cable System.
(3)
Upon reasonable written notice and in accordance with the applicable
provisions contained in § 7-305h of this Ordinance and a
Franchise, a Cable System and all parts thereof shall be subject to
the right of periodic inspection by the Grantor provided that such
inspection shall not interfere with the operation of the Cable System
and such inspections take place during normal business hours with
a representative of the Grantee present.
g.
Miscellaneous Violations.
(1)
Except as otherwise permitted by Applicable Law, from and after
the acceptance of the Franchise, it shall be unlawful for any Person
to establish, operate or to carry on the business of distributing
to any Persons in the Grantor any video signals or audio signals by
means of a Cable System using Rights-of-Way unless a Franchise therefore
has first been obtained pursuant to the provisions of this Ordinance,
and unless such Franchise is in full force and effect.
(2)
Unless permitted by law, from and after the acceptance of a
Franchise, it shall be unlawful for any Person to construct, install
or maintain within any Rights-of-Way in the Grantor, or within any
other public property of the Grantor, or within any privately owned
area within the Grantor which has not yet become a Rights-of-Way but
is designated or delineated as a proposed Rights-of-Way on any tentative
subdivision map approved by the Grantor, or the Grantor's Official
Map or the Grantor's major thoroughfare plan, any Cable System,
unless a Franchise authorizing such use of such Rights-of-Way or property
or areas has first been obtained.
h.
Emergency Use. The Grantee shall comply with the emergency alert
provisions set forth by the FCC, set forth under 47 C.F.R. Part 11,
FCC Rules and Regulations, Emergency Alert System (EAS). To the extent
required by federal and state law, Grantee shall assist the Grantor
in working with the Centre County Office of Emergency Services and
the Centre Region Emergency Management Council in the establishment
of an emergency response plan.
i.
Controlling Law. This Ordinance and a Franchise shall be construed
and enforced in accordance with the substantive laws of the Commonwealth
of Pennsylvania except to the extent the Supremacy Clause of the United
States Constitution requires application of federal law.
j.
Captions. The paragraph captions and headings in a Franchise are
for convenience and reference purposes only and shall not affect in
any way the meaning of interpretation of a Franchise.
k.
Calculation of Time. Where the performance or doing of any act, duty,
matter, payment or thing is required hereunder and the period of time
or duration for the performance or during thereof is prescribed and
fixed herein, the time shall be computed so as to exclude the first
and include the last day of the prescribed or fixed period or duration
of time. When the last day of the period falls on Saturday, Sunday
or a legal holiday, that day shall be omitted from the computation.
l.
Court Jurisdiction. Except as may be permitted by applicable court
rules, any proceedings relating to this Ordinance or a Franchise granted
pursuant to it will be venued in the courts of Centre County, Pennsylvania.
m.
Force Majeure. The Grantee shall not be held in default under, or
in noncompliance with, the provisions of the Ordinance or Franchise,
nor suffer any enforcement or penalty relating to noncompliance or
default (including termination, cancellation or revocation of the
Franchise), where such noncompliance or alleged defaults occurred
or were caused by strike, riot, war, earthquake, flood, tidal wave,
unusually severe rain or snow storm, hurricane, tornado or other catastrophic
act of nature, labor disputes, failure of utility service necessary
to operate the Cable System, governmental, administrative or judicial
order or regulation or other event that is reasonably beyond the Grantee's
ability to anticipate or control. This provision also covers work
delays caused by waiting for utility providers to service or monitor
their own utility poles on which the Grantee's cable or equipment
is attached, as well as unavailability of materials or qualified labor
to perform the work necessary.
n.
No Third-Party Beneficiaries. Nothing in this Ordinance or the Grantee's
Franchise Agreement is or was intended to confer third-party beneficiary
status on any member of the public to enforce the terms of this Ordinance
or the Franchise Agreement.
[Ord. 1906, 8/4/2008]
a.
Publication; Effective Date. A Franchise shall be signed by the designated
head of the governing body, the Mayor, or acting Mayor, and attested
by the Grantor Manager/Secretary. The Franchise shall be published
in accordance with the requirements of Grantor and state law and shall
take effect upon acceptance by Grantee.
b.
Time of Acceptance; Incorporation of Proposal; Exhibits.
(1)
A Grantee shall have 30 days from the date of adoption of a
Franchise by the Grantor to accept a Franchise and written evidence
of the authority of the person signing the Acceptance and Franchise
Agreement has been so authorized. Such acceptance by Grantee shall
be deemed the grant of a Franchise for all purposes. In the event
acceptance does not take place within 30 days or such other time as
the Grantor might allow, a Franchise shall be null and void.
(2)
Upon acceptance of a Franchise, a Grantee shall be bound by
all the terms and conditions contained in this Ordinance and the Franchise.
(3)
With its acceptance, a Grantee shall also deliver any security
deposit, insurance certificates, and/or performance bonds as required
in this Ordinance and in a Franchise Agreement.
