[HISTORY: Adopted by the Board of Supervisors of the Township
of Upper Tulpehocken 8-7-1989 by Ord. No. 2-1989. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Cable Television
Ordinance."
For the purposes of this chapter, the following terms, phrases
and words shall have the following meanings:
The Board of Supervisors of the Township of Upper Tulpehocken.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
Any person or entity which is granted a non-exclusive franchise
pursuant to the terms of this chapter.
The Township of Upper Tulpehocken.
The Board of Supervisors may grant the right and privilege to
qualifying companies to construct, erect, operate and maintain in,
upon, along, across, above, over and under the streets, alleys, public
ways and public places now laid out or dedicated, and all extensions
thereof, and additions thereto, in the Township, poles, wires, cables,
underground conduits, manholes and other television conductors and
fixtures necessary for the maintenance and operation in the Township
of a community television system and for closed-circuit cable services.
Such grants shall be subject to the following conditions:
A.
Nonexclusive grant. No right to use and occupy said streets, alleys,
public ways and places granted pursuant to this chapter shall be deemed
to be exclusive, and the Township reserves the right to grant similar
rights to any other qualifying company at any time.
Qualifying companies shall, at all times during the life of
a franchise granted pursuant hereto, be subject to all federal, state,
and Township laws, ordinances, and regulations, and will further comply
with the following:
A.
Interference. If there is any interference on any television set,
radio or other electronic device not connected with the conductors
or fixtures of the qualifying company which is caused by the conductors
or fixtures of the qualifying company, the qualifying company shall
immediately, at its own cost and expense, eliminate such interference.
If such interference cannot be eliminated within 48 hours, the Township
may direct the suspension of the operation of the qualifying company
within the Township until such interference is eliminated.
B.
Building permits. In addition, the qualifying company shall apply
for and take out any and all building permits required by the Township
for any construction to be undertaken by said qualifying company.
It is expressly understood and agreed by and between any qualifying
company and the Township that the qualifying company shall save the
Township harmless from all loss sustained by the Township on account
of any suit, judgment, execution, claim, or demand whatsoever, resulting
from the operations of the qualifying company in the construction,
operation or maintenance of its television system in the Township.
The Township shall notify the qualifying company's representative
in the Township within 10 days after the presentation of any claim
or demand, either by suit or otherwise, made against the Township
on account of any damages or losses as aforesaid resulting from the
operations of the qualifying company. The qualifying company shall
furnish to the Township, prior to the grant of a franchise hereunder,
evidence in writing that the qualifying company has in full force
and effect public liability insurance of not less than $500,000 for
any one person and $1,000,000 for any one accident, and property damage
insurance of not less than $500,000, duly issued by an insurance company
or companies authorized to do business in the Commonwealth of Pennsylvania,
said insurance to cover all operations by the qualifying company within
the Township. Written evidence of the maintenance of such insurance
in full force and effect, including coverage of any contractually
assumed liability pursuant to this chapter or otherwise, shall be
furnished annually thereafter to the Township.
The qualifying company shall have the authority to promulgate
such rules, regulations, terms and conditions governing the conduct
of its business as shall be reasonably necessary to enable the qualifying
company to exercise its rights and perform its obligations under this
franchise, and to assure an uninterrupted service to each and all
of its customers; provided, however, that such rules, regulations,
terms and conditions shall not be in conflict with the provisions
hereof, additional regulations or ordinances of the Township, or the
laws of the Commonwealth of Pennsylvania or the United States of America.
A.
Use. All transmission and distribution structures, lines and equipment
erected by the qualifying company within the Township shall be so
located as to cause minimum interference with the use by others of
streets, alleys, and other public ways and places, and to cause minimum
interference with the use by others of streets, alleys, and other
public ways and places, and to cause minimum interference with the
rights or reasonable convenience of owners of property which abuts
the said streets, alleys or other public ways and places.
B.
Restoration. As soon as practicable, in case of any disturbance of
pavements, sidewalk, driveway or other surfacing, the qualifying company
shall, at its own cost and expense and in a manner approved by the
Township Engineer or other person designated by the Supervisors, replace
and restore all paving, sidewalk, driveway, or surface of any street
or alley disturbed in as good condition as before work was commenced.
C.
Relocation. In the event that at any time during the period of any
franchise granted pursuant to this chapter the Township shall lawfully
elect to alter, or change the grade or location of, any street, alley
or other public way, the qualifying company, upon reasonable notice
by the Township, shall remove, relay, and relocate its poles, wires,
cables, underground conduits, manholes and other fixtures at its own
expense.
D.
Placement of fixtures. The qualifying company must use existing utility
poles of the electric or telephone companies if they are available
on terms comparable to other pole license agreements to which the
cable company is a party or are comparable to pole license agreements
in Berks County. The qualifying company shall not place poles or other
fixtures where the same will interfere with any gas, electric or telephone
fixtures, water hydrant or main, and all such poles or other fixtures
placed in any street shall be placed at the outer edge of the sidewalk
and inside the curbline; those placed in alleys shall be placed close
to the line of the lot abutting on said alley, and in such a manner
as not to interfere with travel on said alleys. Erection of poles,
pedestals, vaults and any other fixtures installed by the cable company
shall be subject to all zoning and construction ordinances and regulations.
Any qualifying company erecting any poles, pedestals, vaults or any
other fixtures shall be solely liable for harm to any person as a
result of such erection and shall indemnify and hold the Township
harmless for any claims relating thereto.
E.
Temporary removal of wire for building moving. The qualifying company
shall, on the request of any person holding a permit issued by the
Township, temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same, and the
qualifying company shall have the authority to require such payment
in advance. The qualifying company shall be given not less than 48
hours' advance notice to arrange for such temporary wire changes.
F.
Tree trimming. The qualifying company shall have the authority, to
the same extent that the Township has such authority, to trim trees
that overhang onto streets, alleys, sidewalks and public places of
the Township so as to prevent the branches of such trees from coming
into contact with the wires and cables of the qualifying company.
The Township reserves the right to cause the trees to be trimmed either
by Township employees or by Township contract if deemed necessary
by the Board of Supervisors. The Township will have the right, within
30 days of the date of the tree trimming, to assess the relevant qualifying
company or companies for its pro rata share of the cost to the Township.
A.
Township rules. Township may adopt by resolution such additional
regulations as it shall find necessary.
B.
Use of system by Township. The Township shall have the right, during
the life of this franchise, free of charge, where aerial construction
exists, of maintaining upon the poles of the qualifying company within
the Township wires and fixtures necessary for police communications,
fire alarm and civil defense warning systems.
C.
Inspection. The Township shall have the right to inspect all construction
or installation work during such construction or installation or at
any time after completion thereof, in order to ensure compliance with
the provisions of this chapter and all other governing ordinances.
A.
Any qualifying company holding a franchise pursuant to the terms
of this chapter shall pay to the Township for the privilege of operating
its community television system under such franchise the sum of 5%
of the annual gross basic cable television service receipts each year
thereafter.
B.
The qualifying company shall make payment to the Township of such
fees within 30 days following the anniversary date of the grant of
its franchise. Such payments shall be accompanied by written proof
of the factual basis for computation of the payment. Failure to make
such payments in a timely manner shall be cause for the Township to
issue a penalty to the qualifying company in the amount of $100 per
day for each day that such payment is late and also institute civil
proceedings against the qualifying company for collection of the delinquent
fees in Common Pleas Court or at the Magisterial District Judge having
jurisdiction within the Township.
The qualifying company shall at all times maintain adequate
records of its gross receipts from cable television subscriptions,
which shall be available at all reasonable times to inspection by
the Township through its duly designated agents or officers. Failure
of the qualifying company to cooperate with the Township and to fully
maintain and disclose such records will give the Township the right
to take legal action to compel production of such records and to recover
any proceeds, together with costs of suit and reasonable attorneys
fees, due and owing to the Township.
Any franchise granted hereunder shall be for the initial term
of 10 years; conditioned, however, that said franchise permit shall
thereafter automatically renew for each successive year upon the payment
of the fees provided hereunder and compliance with the terms and conditions
herein imposed and that the financial condition of the franchise shall
remain satisfactory to the Township. Said successive extensions shall
be for a maximum of five additional years. The term "financial condition"
shall be interpreted to mean that the franchisee's condition
is such that it will permit the franchise to perform all of its services
to its subscribers.
A.
A qualifying company will be required to protect or remove the cable
system, at the company's own expense, whenever the Township determines
that the system, or parts of the system, in any way interfere with
present or future municipal services or facilities.
[Amended 10-9-1989 by Ord. No. 4-1989]
B.
Upon initial application for franchise, all prospective qualifying
companies will submit a $50,000 construction completion bond, subject
to forfeit to the Township if the system is not built as proposed
pursuant to the terms of this chapter, any other applicable law, as
well as the application for the franchise submitted by the qualifying
company. Upon completion, and prior to operating the system, the requirement
for the $50,000 construction bond will be removed and a $25,000 performance
bond, subject to forfeiture to the Township upon failure of the qualifying
company to comply with the terms of this chapter and any other applicable
law, as well as the application for the franchise submitted by the
qualifying company, will be submitted to the Township.
C.
Any sale, transfer, or assignment of the rights of a qualifying company
to another entity under this chapter will be subject to the approval
of the Township, which approval will not be withheld except for good
reason.
D.
The qualifying company will, upon a written request by any subscriber
within the Township, furnish a parental guidance or lockout key, at
a reasonable cost to the subscriber, at the subscriber's request.
E.
The qualifying company shall maintain the capability of at least
four hours of standby power at the head end of the system.
F.
Any qualifying company will maintain a business office to provide
access to the Township and customers of the qualifying company for
transaction of any business under this chapter. Such business office
will be located within 30 miles from the Township building. The qualifying
company will maintain a toll-free number for access by customers during
normal business hours.
G.
The qualifying company will place all components of the cable system
underground wherever feasible and in all areas in which the electric
and telephone utilities are placed underground, whether currently
underground or if such utilities are placed underground in the future.
H.
The qualifying company will ground all drops at the subscriber's
dwelling or structure.
I.
Any qualifying company that operates in the Township as a "standalone"
system will provide the Township with the option to require the availability
of access channels. If the qualifying company maintains a system in
the Township which is part of a larger system, the Township shall
have the option to use such larger system's access channels on
a shared basis.
J.
All qualifying companies will provide for prompt service calls which,
during regular business days, shall be responded to within a maximum
of 24 hours from the time of the complaint, and will provide same
day response for any complaint relating to complete loss of service
to three or more houses located within 1/2 mile of each other, and
received by qualifying companies prior to 5:00 p.m. All qualifying
companies will provide service regarding all other complaints pertaining
to cable service and relating to problems within the control of the
qualifying company, within 72 hours of receipt.
[Amended 10-9-1989 by Ord. No. 4-1989]
K.
Installation of individual service will take place within 10 days
of application in the cases of aerial installations and within 60
days in cases of underground installations.
L.
Each qualifying company will provide free installation and basic
service to least one outlet in each municipal building, public school
building, public library, and police and fire station, any of which
are located within 200 feet of underground or aerial cable. The distribution
of the cable facility inside such buildings and the extent thereof
shall be at the option and expense of the building owner.
[Amended 10-9-1989 by Ord. No. 4-1989]
M.
Each qualifying company will, at least once each year, provide written
notice to the Township and all Township subscribers as to current
complaint and billing policies. In the event of any change to complaint
or billing policies, the company will provide 30 days' advance
notice prior to implementing such changes.
N.
In the event that, for any reason within the control of the qualifying
company service is discontinued to any subscriber for a period of
more than 24 hours, the qualifying company will rebate, at the time
of the next billing, the pro rata amount of such bill that corresponds
to the period of loss service.
[Amended 10-9-1989 by Ord. No. 4-1989]
O.
The qualifying company will maintain at least 36 activated downstream
television channel capacity with at least 28 basic channels provided
pursuant to the basic monthly service charge in addition to at least
four channels to be made available upon additional charge.
Any violation by a qualifying company, its servants, agents
or employees, of the provisions of this chapter, or the failure promptly
to perform any of the provisions hereof, or the failure to exercise
the rights granted pursuant hereto within two years of the grant of
a franchise, shall be cause for the forfeiture of such franchise and
all rights thereunder at the election of the Township. After the initial
two-year period, the Township reserves the right to cancel any franchise
of any qualifying company for repeated or several violations of the
provisions of this chapter or terms of any franchise agreement.
A.
All applicants for franchise permits shall submit to the Township
an application, on a form to be provided by the Township, to include
information relevant to the applicant's conducting cable television
operations pursuant to this chapter and the Federal Cable Communications
Act, including a statement containing the following:
(1)
Name of applicant.
(2)
Address of the applicant.
(3)
Evidence of financial condition of the applicant and, if the applicant
is a corporation or partnership, the names of the principal stockholders
or partners, whichever is applicable. A financial statement of the
person or corporation shall be submitted and shall be certified by
a certified public accountant.
(4)
A detailed map showing the exact streets which the qualifying company
thereby commits to serve.
B.
Such form and additional information desired by the Township shall
be determined by a resolution by the Board of Supervisors from time
to time.
Any qualifying company will complete construction of the basic system as described in § 137-14A(4) above within one year of the date that the Township approves a franchise application. Additional areas, adjacent to the initial cable system as described above, will be provided service whenever the density of living units reaches 15 living units per mile based upon road frontage and such additional coverage will be provided within six months of the time that the company is notified that such area qualifies.
The Township hereby reserves all authority for regulations of
rates, services, facilities, and equipment to the extent allowed by
the Federal Cable Communications Act, as amended.
In the event any provision, section, sentence, clause or part
of this chapter shall be held invalid, such invalidity shall not affect
or impair any remaining provision, section, sentence, clause or part
of this chapter, it being the intent of the Township that such remainder
shall be and shall remain in full force and effect.
