[HISTORY: Adopted by the Board of Supervisors of East Earl Township 11-13-2001 by Ord. No. 106 (Ch. 13, Part 1, of the 2001 Code of Ordinances). Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 269.
This chapter shall be known and may be cited as the "Cable Television Ordinance of the Township of East Earl."
A. 
All terms in this chapter shall have the meaning given to them by the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended. In addition, for purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive.
ACT
The Cable Communications Policy Act of 1984, as amended.
APPLICANT
Any person who applies for a franchise or the renewal of a franchise under this chapter.
BOARD OF SUPERVISORS
The duly elected members of the Board of Supervisors of the Township of East Earl.
COMPANY
The grantee of rights of the nonexclusive cable television franchise.
FRANCHISE
The nonexclusive rights granted pursuant to this chapter to construct and operate a cable system along the public ways in the Township or within specified areas in the Township, and is not intended to include any license or permit required for the privilege of constructing, transacting and carrying on a business within the Township as may be required by other ordinances of the Township or the laws of the Commonwealth of Pennsylvania or the laws of the United States of America.
FRANCHISE AGREEMENT
The agreement duly executed by the authorized members of the Board of Supervisors and the applicant granting a franchise to an applicant pursuant to the provisions of this chapter.
FRANCHISE AREA
The corporate limits of the Township, including all territory thereafter annexed to the Township.
FRANCHISEE or GRANTEE
The person granted a franchise pursuant to this chapter and its lawfully approved successor, transferee or assignee.
GROSS REVENUES
Any and all compensation or receipts derived from installation, disconnection and reinstallation charges, as well as income from service changes imposed upon residents of the Township, including basic service, premium service, and pay-for-view charges. These gross revenues shall not be reduced for any purposes other than provided herein, and shall be the basis for computing the franchisee fee imposed by this chapter. These gross revenues shall not include converter deposits or refunds to subscribers by the franchisee, or items excluded by the federal Cable Communications Policy Act of 1984.
PERSON
An individual, firm, corporation, cooperative association, trust, partnership, joint venture, combination or any other legally recognized entity.
PRIMARY SERVICE AREA
All portions of the franchise area having an average density of 35 or more dwelling units per mile of trunk or distribution cable within the franchisee area.
STREET
The surface of and the space above and below any public street, road, highway, freeway, easement, lane, path, alley, court, sidewalk, parkway or driveway now or hereafter existing within the Township.
SUBSCRIBER
Any person who receives basic cable service from the franchisee and who does not further distribute such service or services.
TOWNSHIP
The Township of East Earl.
B. 
Any words, phrases or terms not defined in this chapter shall be given their common and ordinary meaning.
A. 
Power and authority. The Board of Supervisors hereby exercises its power and authority to award franchises for the construction of cable systems in the Township of East Earl pursuant to the federal Cable Communications Policy Act of 1984, P.L. 98-549, § 2, 98 Stat. 2780,[1] and the Second Class Township Code, Act of May 1, 1933, P.L. 103, Act 1, § 101, as amended.[2]
[1]
Editor's Note: See 47 U.S.C. § 521 et seq.
[2]
Editor's Note: See 53 P.S. § 65101 et seq.
B. 
Applicability. No person shall establish, construct, operate or maintain a cable system in the Township unless a franchise therefor has first been obtained from the Board of Supervisors by applying for a franchise pursuant to the provisions of this chapter.
C. 
All persons lawfully providing cable service with a franchise who seek renewal thereof shall apply to the Board of Supervisors for renewal pursuant to the provisions of this chapter. Any person lawfully providing cable service in the Township without a franchise on July 1, 1984, shall obtain a franchise pursuant to this chapter.
A. 
Every person who desires to apply for the grant of a franchise to construct, operate or maintain a cable system in the Township or desires to renew an existing franchise agreement shall obtain an official application from the Township Secretary. The application shall be in a form specified by the Board of Supervisors. The application shall be filed with the Township Secretary in triplicate and shall be accompanied by an application fee, which fee shall be set by the Board of Supervisors in an amount reasonably determined to approximate the costs of the processing of the application. The applicant shall also reimburse the Township for all reasonable costs and expenses, including, but not limited to, attorneys' fees, consulting fees and Township staff time, incurred in evaluating the application.
B. 
In the event that the Board grants a franchise to the applicant, the Board shall cause to be executed an agreement. The agreement so adopted by the Board shall be executed by the applicant or the applicant's representative. The agreement granting the franchise shall set forth all of the terms and conditions of the nonexclusive franchise which are in addition to the requirements of this chapter.
C. 
In making any determination hereunder as to any application for a new franchise, the Board of Supervisors may consider factors, including, but not limited to, the quality of the service proposed, rates to subscribers, income to the Township, experience, character, background and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, to meet all requirements set forth in this chapter, and to abide by all purpose and policy conditions, franchise limitations and requirements and any other considerations deemed pertinent by the Board of Supervisors for safeguarding the interests of the Township and the public.
D. 
No provision of this chapter shall be deemed or construed so as to require the Board of Supervisors to grant a franchise when, in the opinion of the Board of Supervisors, it is in the public interest to restrict the number of franchisees to one or more.
Any franchisee desiring to renew its franchise shall give written notice of its intention to do so six months prior to the expiration of the then current term of the franchise or renewal. The notice of intention to renew shall be provided to the Township on a form specified by the Board of Supervisors and shall be accompanied by the fee established for renewal. The fee so established shall approximate the actual costs of the processing of the application for renewal.
Duration. The duration of the rights, privileges and authorizations granted to a franchisee shall not exceed 15 years from the date of the franchise. The duration of the rights, privileges and authorizations granted in a renewal of a franchise shall not exceed 10 years from the date such renewal is granted.
A. 
The company or franchisee shall, at all times during the life of this franchise, be subject to the terms of this chapter, to all lawful exercise of the police power by the Township, to reasonable regulations as the Township shall hereafter by resolution or ordinance provide which are not expressly forbidden by or inconsistent with the provisions of the Act, into all other applicable laws, rules and regulations now in effect or hereafter enacted. In awarding a franchise, the Township:
(1) 
Shall allow the franchisee a reasonable period of time to become capable of providing cable service to all households in the franchise area.
(2) 
May require adequate assurance that the franchisee will provide adequate public, educational and governmental access to channel capacity, facilities or financial support.
(3) 
May require adequate assurance that the franchisee has the financial, technical or legal qualifications to provide cable service.
B. 
The Township is permitted to make these requests by the 1992 amendments to the Act.
The franchisee shall be permitted to construct a cable system within the franchise area.
A. 
The franchisee shall provide cable services throughout the primary service area pursuant to the provisions and requirements of this chapter as well as the franchise agreement. The franchisee shall keep a current file of all requests for service received by the franchisee for not less than the three most recent years. This record shall be maintained during the entire life of the franchise and be available for public inspection at the local office of the franchisee during regular office hours.
B. 
The franchisee shall extend service to Township residents upon request at no cost for any system extension, other than the usual connection fees charged to all subscribers, whenever the resident making such a request resides in an area with a density of at least 35 dwelling units per mile of trunk or distribution cable.
C. 
If a franchisee provides a premium channel, as defined by the Act, without charge to subscribers who do not subscribe to such premium channel, the franchisee shall, not later than 30 days before such premium channel is provided without charge:
(1) 
Notify all subscribers that the franchisee plans to provide a premium channel without charge;
(2) 
Notify subscribers when the franchisee plans to offer the premium channel without charge;
(3) 
Notify all cable subscribers that they have a right to request that the channel be blocked; and
(4) 
Block the channel carrying the premium channel upon request.
D. 
No person shall be refused service arbitrarily. The franchisee shall not deny service, deny access or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, natural origin, sex, age or disability. However, under the following unusual circumstances, in order that existing subscribers shall not be unfairly burdened, service may be made available on the basis of a capital contribution in aid of construction, based upon the actual costs of material, labor and easements:
(1) 
Where there is more than 175 feet of distance from a trunk or distribution cable to connection of service to subscribers.
(2) 
Where the average density is less than 35 dwelling units per mile of trunk or distribution cable outside of the primary service area.
E. 
It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to a franchisee are honored. In the event that a franchisee elects to overbuild, rebuild, modify or sell the system, or the Township gives notice of intent to terminate or fails to renew a franchise, the franchisee shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. In the event of a change of franchisee, or in the event a new operator acquires the system, a franchisee shall cooperate with the Township, new franchisee or operator in maintaining continuity of service to all subscribers. During such period, the franchisee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system.
F. 
If the Township is required to fulfill this obligation for a franchisee, the franchisee shall reimburse the Township for all reasonable costs or damages incurred as a result of the Township's operation of the system and shall be permitted to collect revenues from subscribers.
A. 
The transmission and distribution system shall be installed and maintained so as not to interfere with conventional television and radio reception throughout the Township.
B. 
The franchisee shall put, keep and maintain all parts of the system in optimum condition throughout the entire franchise, or any renewal thereof. The transmission and distribution system shall be installed and maintained in accordance with good engineering practices and of sufficient height to comply with all present or future Township ordinances, regulations, laws of the commonwealth or laws of the United States, so as not to interfere in any manner with the right of the public or an individual property owner, nor shall the system interfere with the public right to travel or use of public places.
C. 
A franchisee shall continue, through the term of the franchise, to maintain the technical, operational and maintenance standards and quality of service set forth in this chapter as well as the franchise agreement. Should the Township find that a franchisee has failed to maintain these standards and quality of service, and should it specifically enumerate improvements to be made, a franchisee shall make such improvements. Failure to make such improvements within three months after the date on which the required improvements were communicated to the franchisee will constitute a breach of condition for which the remedy of the provisions relating to forfeitures and terminations are applicable.
D. 
The franchisee shall provide a minimum of 12 channels of basic service and shall provide one service outlet for the reception of its cable services free of all charge to each school building, public or parochial, and to each municipal building and to the fire and police departments in the franchise area. This provision is applicable only to schools, municipal buildings and fire or police departments within the primary service area.
E. 
The company shall provide for the Township, along with those other Lancaster County, Pennsylvania, municipalities under contract with the company, at least one dedicated, noncommercial, multi-municipality, public access channel for public, educational and municipal government use. The Board shall determine which Township programs shall appear on this public access channel.
F. 
Notice of interruption for repairs. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the company shall attempt to do so at such times as shall cause the least amount of inconvenience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall attempt to give liberal notice thereof to its subscribers.
G. 
Continuous service. Franchisee service shall be continuous daily during the regular telecast operating hours of the stations whose television broadcasts are being transmitted. The company shall maintain a toll-free telephone line with seven-day-per-week service to receive complaints. The company shall provide subscribers with a written estimation of the company's complaint policy. The company agrees to respond to and investigate all complaints when received from the subscribers within the Township, and to resolve said complaint in an efficient and timely manner if at all technically and reasonably possible, and the company's agents and employees shall be available for such purposes within the Township.
A. 
The franchisee shall indemnify, protect and save harmless the Township from and against losses and physical damages to property and bodily injury or death to persons, including payments made under any workers' compensation law, which may arise out of or be caused by the installation, maintenance, presence, use or removal of the transmission and distribution system within the Township or by any act of the franchisee, its agents or employees.
B. 
The franchisee shall carry insurance to protect the Township from and against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of such loss, injury or damage. The amount of such insurance against liability due to physical damage to property shall be not less than $500,000 as to any one accident; the amount of such insurance against liability due to bodily injury or to death of persons shall be not less than $1,000,000 as to any one person, and shall be not less than $2,000,000 as to any one accident. At least yearly, franchisee shall furnish to Township certificates of insurance reflecting that the Township is so insured and that all applicable policies are current and effective. The franchisee shall also carry such insurance as will protect it from all claims under any workers' compensation law in effect that may be applicable to it. In addition, the franchisee shall indemnify the Township and its officials and shall hold them harmless of and from any and all liability with respect to alleged copyright infringements and with respect to the subject matter of any program transmitted by the franchisee.
The franchisee shall not sell, transfer or assign this franchise without written notice to the Board of Supervisors. No sale or transfer shall be effective until the vendee, assignee or lessee has filed with the Township Secretary an instrument accepting the terms of the franchise and agreeing to perform all the conditions thereof.
A franchisee shall pay to the Township, on or before March 15 of each and every year of the franchise, a franchise fee in an amount not to exceed that which is permitted by law based upon 5% of gross revenues received for the franchisee's operations in the Township for the preceding year (the charge for the initial year shall be prorated from the effective date of the grant of the franchise to the end of the initial year). The Township has the authority to increase the franchise fee as permitted by federal law.
A. 
All persons who are granted a franchise by the Board of Supervisors shall have the right and privilege 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 cable conductors and fixtures necessary for the maintenance and operation in the Township of East Earl of a cable system to be used for the sale and distribution of cable services to the residents of the Township.
B. 
Use. All transmission and distribution structures, lines and equipment erected by the company within the Township shall be located with the approval of the Board of Supervisors and shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who use the streets of the Township. Upon request, the company shall furnish the Township with a map showing the cable system in sufficient detail to assure the Township of being currently advised as to the location of the cables. Upon request, it shall also be the responsibility of the company to keep the Township advised of any and all changes, additions and removals to the cable system except for the individual subscriber's connection wires.
C. 
Restoration. In the case of any disturbance of pavement, sidewalk, driveway or other surfacing, the company shall, at its own cost and expense, replace and restore all paving, sidewalk, driveway or surface of any street disturbed to as good condition as before said work was commenced.
D. 
Relocation. In the event that at any time during the term of a franchise granted hereunder, the Township shall lawfully elect to alter or change the location or grade of any street, road or other public way or if, in the opinion of the Board of Supervisors, a pole or pole line interferes with the necessary convenience of the Township or a property owner, then upon reasonable notice by the Township, the company shall remove, relay and relocate its poles, wires and cables or other cable system fixtures at its own expense.
E. 
Placement of fixtures. It is the policy of the Township and it is understood by the company that where distribution lines are to be installed along any public street, the same shall be attached to existing utility poles and not to additional poles placed on the same side of the street as existing utility poles. It is understood and agreed that this restriction and limitation shall extend to any and all streets within the limits of the Township, even though some of said streets may be part of the state highway system. A waiver of this requirement may be granted to the company by the Supervisors upon written application to the Township by the company, but said waiver shall be for good cause shown and in the sole discretion of the Board of Supervisors.
(1) 
Before the company sets poles or constructs any structure on Township property, streets or rights-of-way, it shall file with the Township detailed specifications showing the exact location, height and dimension of the poles or structures to be erected. The poles or structures shall not be erected thereafter until such specifications shall be approved, in writing, by the Board of Supervisors. All wires, cables and other overhead equipment shall be at such minimum heights as are or may be required by the Pennsylvania Public Utility Commission or the Pennsylvania Department of Transportation.
(2) 
When the company makes written application for a waiver or submits specifications for construction and the Board of Supervisors is uncertain as to the exact location of the limits of the right-of-way of any street or road, then, in their discretion, the Board of Supervisors may require the same to be surveyed by a surveyor selected by them, the cost of said survey to be paid by the company.
F. 
Underground placement. It is the policy of the Township and it is understood and agreed to by the company that all distribution lines, wires and cables shall be located underground in those areas of the Township where existing and/or proposed utility services are located underground.
G. 
Tree trimming. The company shall have the authority to trim trees upon and overhanging streets, roads and public places of the Township so as to prevent the branches of such trees from coming in contact with wires and cables of the company, all trimming to be done in accordance with Township regulations and at the expense of the company.
H. 
Use of poles and fixtures. The company agrees that it shall, upon request, furnish a copy of any contract entered into with any public utility for the use of their poles by the company and setting forth the terms, conditions and duration of said contract. The company agrees that the copy of the aforementioned contract shall be filed upon written request with the Township Secretary prior to starting installation of wires or other facilities on Township streets or rights-of-way under the franchise.
I. 
Removal of wires from premises of subscriber. The company shall, on request of any subscriber, promptly remove all of the wires, and installation from the premises of such subscriber.
J. 
Removal of wire, poles and installations from Township streets. The company shall remove or cause to be removed from the streets, roads and public ways of the Township and from all public property all of the wires, poles and installations of any kind or nature whatsoever which have been installed thereon upon the termination of the franchise or upon cessation of operation under the franchise by the company, its successors or assigns, for any reason whatsoever.
A. 
In addition to all other rights and powers retained by the Township under this chapter or otherwise, the Township reserves the right to forfeit and terminate a franchise and all rights and privileges of a franchisee in the event of a material breach of its terms and conditions. In interpreting this chapter, material provisions shall include all labeled as such and all others which, under all the facts and circumstances indicated, are a significant provision of the franchise agreement. A material breach by franchisee shall include, but shall not be limited, to the following:
(1) 
Failure to begin or complete system construction, reconstruction or system extension as specified in the franchise agreement.
(2) 
Failure to provide the types of services promised, unless the franchisee has successfully pursued whatever recourse is available under § 625 of the Cable Communications Policy Act of 1984.
(3) 
Failure to restore service after 96 consecutive hours of interrupted service, except when approval of such interruption is obtained from the Township.
(4) 
Material misrepresentation of fact in the application for or negotiation of the franchise.
B. 
The foregoing shall not constitute a material breach if the violation occurred without fault of the franchisee or occurred as a result of circumstances beyond its control. Franchisee shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its shareholders, directors, officers or employees.
C. 
The Township may make a written demand that a franchisee comply with any such provision, rules, order or determination under or pursuant to this chapter and franchise agreement. If the violation by the franchisee continues for a period of 30 days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the Township may place the issue of termination of a franchise before the Board of Supervisors. The Township shall cause to be served upon franchisee, at least 20 days prior to the date of such Board meeting, a written notice of intent to request such termination.
D. 
The issue of forfeiture and termination shall automatically be placed upon the Board's agenda at the expiration of the time set by it for compliance. The Board then may terminate a franchise forthwith upon finding that franchisee has failed to achieve compliance or may further extend the period, in its discretion.
The company shall keep full, true, accurate and current books reflecting its investment and its operations under this chapter, which books and records shall be made available on a confidential basis for inspection by officials of the Township. The Township shall be permitted to make copies of the company's records with the permission of the company or as part of discovery proceedings if litigation between the company and the Township should occur.
For the purpose of administering this chapter, the company shall, concurrent with the payment of the fee specified in § 159-13, hereof, file a verified statement of the gross receipts received from subscribers in the Township for the preceding six-month period.
It is expressly understood that the Township has no control, standard or regulation pertaining to the subject matter of programs distributed by the company. The company agrees to indemnify and save harmless the Township, its officers, agents and employees, from all claims, suits and actions at law or equity (including attorneys' fees and expenses of investigation relating thereto) for libel, slander, invasion of privacy and patent or copyright infringement in any action arising out of the subject matter of programs transmitted by the company. The company further agrees that in the event the Township is made a party defendant in any action arising out of the subject matter of programs transmitted by the company, the company shall, at its sole cost and expense, defend such action and any appeals therefrom.
The company shall hold the Township harmless from the alleged violation of any utility franchise previously granted by the Township. The granting of a franchise under this chapter shall not be construed as any undertaking or guaranty of the efficiency of the company or maintenance of the service of the company. The Township assumes no responsibility for the acts or omissions of the company; provided, however, that the Township shall have the right but not the obligation to require compliance with this chapter.
If the Board of Supervisors or the officer designated to enforce this chapter by the Board of Supervisors determines that a person has committed or permitted the commission of a violation of this chapter, the Board of Supervisors or such enforcement officer shall inform such person, in writing, of the violation, shall notify such person to cease the violation of this chapter and shall inform such person that he or she must pay a civil penalty to the Township within the range of the amounts set forth below to settle the violation. The penalty for a first offense shall be not less than $50 and not more than $600; the penalty for a second offense shall be not less than $100 and not more than $600; and the penalty for a third or greater offense shall be not less than $200 and not more than $600. If such person fails or refuses to remit the penalty to the Township within 10 days from the date of the written notice of violation of this chapter, the Township may commence a civil enforcement proceeding seeking penalties and costs for the violation of this chapter and/or may commence an action in equity. The Township shall seek a judgment for the penalty previously imposed, together with additional daily penalties for continuing violations, plus all court costs, including the reasonable attorneys' fees incurred by the Township in the enforcement proceedings. Each day that a violation continues shall constitute a separate violation, and each section of this chapter which is violated shall constitute a separate violation. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable rules of civil procedure.
In addition to or in lieu of the penalties provided in § 159-20, hereof, the Township may commence actions to collect franchise fees which are due and payable under this chapter and any violations of this chapter may be abated by proceeding against the violator in a court of equity for relief.