[HISTORY: Adopted by the Board of Supervisors
of the Township of Lehigh as indicated in article histories. Amendments
noted where applicable.]
[Adopted 7-2-1992 by Ord. No. 1992-1]
This ordinance shall be known and may be cited
as the "Twin County Television Franchise Ordinance."
For the purpose of this ordinance 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, and words in
the singular number include the plural number. The word "shall" is
always mandatory and not merely directory.
A system of antennas, cables, wires, lines, towers, waveguides
or other conductors, converters, equipment or facilities, designed
and constructed for the purpose of producing, receiving, amplifying
and distributing, audio, video and other forms of electronic or electrical
signals, located in the said Township.
The grantee of rights under this ordinance awarding a franchise.
Those revenues received by the company from monetary shares
of any character whatsoever, including donations, contributions, dues,
membership fees or service charges (whether periodical or otherwise)
charged or paid in any manner from and by the general public, directly
or indirectly, for the privilege of receiving any television signal
or electronic impulse which is transmitted through the cables or wires
of the cable television system of the company which pass on, over,
under or along the streets, alleys and public ways of the Township
and which are paid by the subscribers/residents located within the
said Township. Gross subscriber revenues shall not include the revenues
received by the company as installation charges and shall not include
fees for reconnections, inspections, repairs or modifications of any
installations or fees from advertising.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
The Township of Lehigh in the County of Northampton and State
of Pennsylvania.
A public hearing concerning the application
for the franchise herein granted to the company was held on July 2,
1992, at the Municipal Building. Public notice of said hearing was
given in the The Morning Call, a local newspaper, which notice invited
interested parties to participate in said hearing and comment upon
the legal, financial, technical and other qualifications of the company
to operate a cable television system in the Township. Said hearing
having been held on the date and place stated hereinabove, and said
hearing having been fully open to the public, and the Township having
received at said hearing all comments regarding the qualifications
of the company to receive this franchise, the Township hereby finds
that the company possesses the necessary legal, technical, financial
and other qualifications and that the company's construction arrangements
are adequate and feasible, and that, therefore, the Township hereby
grants to the company a nonexclusive franchise, right and privilege,
subject to the provisions of existing Township ordinances pertaining
to streets and roads, other ordinances and resolutions of the Township
and the Federal Communications Commission Rules and Regulations, to
construct, erect, operate, modify and maintain in, upon, along, across,
above and over and under the highways, streets, alleys, sidewalks,
public ways and public places now laid out or dedicated and all extensions
thereof, and additions thereto, in and of the Township, poles, wires,
cables, underground conduits, manholes and other television conductors
and fixtures necessary for the maintenance and operation in the Township
of cable television system for the purpose of distributing television
and radio signals and other electronic impulses in order to furnish
television and radio programs, and various communications and other
electronic services to the public. The right so granted includes the
right to use and occupy said streets, alleys, public ways and public
places and all manner of easements for the purposes herein set forth,
and does not confer any exemption from federal, state or local taxes.
The term of this grant of authority shall commence on the date hereof,
and shall continue for a period of 15 years from the date that the
cable television system is operable, and shall renew for additional
ten-year periods thereafter.
The franchise so granted to the company herein
shall remain subject always to the ordinances, resolutions, rules
and regulations of this Township, the Pennsylvania Public Utilities
Commission (where applicable), the Federal Communications Commission,
the Cable Communications Policy Act of 1984, and all and any other
local, state and federal rules and regulations that may be applicable.
Specifically, the company shall, at all times; comply with the rules
and regulations governing the CATV operations promulgated by the FCC,
as so modified in the future. This shall include adherence by the
company to FCC rules regarding technical and engineering specifications
involved in the construction of the CATV system and signal carriage
therein. Nothing herein contained shall be so construed as to diminish
or limit or void any other franchise heretofore or hereafter ordained
and effective prior to or after the passage of this ordinance.
The company shall, for and in consideration
of the privileges and rights granted herein, during each year of operation
under this franchise, pay to the Township 5% of the annual gross subscriber
revenues received by the company as herein defined. The said payment
shall be made annually. At the time of this annual payment, the company
shall furnish the Township with an operating report showing the company's
annual gross subscriber revenues during the preceding year and such
other information as the Township shall reasonably require with respect
to the company's services within the Township for such period. The
5% rate may be increased by subsequent resolution of the Township,
subject to FCC regulations governing the same.
The company shall keep full, true, accurate
and current books of account, which books and records shall be made
available for inspection and copying by the Township Director of Public
Services or his authorized representative at all reasonable times.
All rates for service shall be reasonable, compensatory
and nondiscriminatory. All and any reasonable and justifiable rate
increases effected by the company shall not be unreasonably or arbitrarily
opposed by the Township.
The company shall pay, and by its acceptance
of this franchise the company expressly agrees that it will pay, all
damages and penalties which the Township may legally be required to
pay as a result of the company's installation, operation or maintenance
of the cable television system authorized herein. The company further
agrees as follows:
A.
Company shall carry workmen's compensation insurance,
with statutory limits, and employer's liability insurance with coverage
of at least $100,000, which shall cover all operations to be performed
by company as a result of this ordinance;
B.
Company shall carry comprehensive general liability
and comprehensive automobile liability insurance with bodily injury
coverage of at least $100,000 per occurrence and property damage coverage
of at least $300,000 per occurrence;
C.
Company's workmen's compensation, comprehensive general
liability and comprehensive automobile liability insurance shall be
written by an insurance company with a capital and/or surplus of at
least $3,000,000 and company agrees to furnish Township with certified
copies or certificates of insurance of said policies, which shall
provide that said insurance may not be canceled unless 10 days prior
notice thereof is given by the insurance carrier to the Township.
A.
Upon grant of this franchise to construct and maintain
a community television system in the Township, the company may enter
into contracts with any light, gas and water and sewer divisions of
the Township, any public utilities companies or any other owner or
lessee of any utility pole located within or without the Township
to whatever extent such contract or contracts may be expedient and
of advantage to the company for use of poles and posts necessary for
proper installation of the system, obtain right of way permits from
appropriate Township, state, county and federal officials necessary
to cross highways or roads under the respective jurisdictions to supply
main trunk lines from the company's receiving antennas, obtain permission
from the Federal Aviation Authority to erect and maintain antennas
suitable to the needs of the system and its subscribers and obtain
whatever other permits a Township, county, state or federal agency
may require. In the construction, installation and maintenance of
its system, the company will use steel, cable and electronic devices,
all of specialized and advanced design and type, in the operation
of its system, the company will employ personnel with training, skill
and experience in electronics and communications. It is understood,
under FCC regulations, that such material and personnel may not be
available to the company for its system in the event of a war or other
similar national emergency.
B.
The company's system, poles, wires, appurtenances
and all other of its equipment and facilities shall conform to Township
ordinances, the National Electric Code, the Pennsylvania Public Utility
Commission and the FCC and shall be so located, erected and maintained
so that none of its facilities shall endanger or interfere with the
lives of persons, or interfere with any improvements the Township
may deem proper to make, or unnecessarily hinder or obstruct the free
use of the streets, alleys, bridges, easements or public property.
C.
In the event that the Township shall annex further territory as authorized by law or new areas of the Township are developed, the company shall extend energized trunk cable to these portions of the Township within one year thereafter, unless additional time is granted by the Board of Supervisors upon request of the company for good cause shown. Extension of service shall not be required into any area which does not meet the requirement set forth in § A185-10 of this franchise ordinance.
D.
All transmission and distribution structures, lines
and equipment erected by the company within the Township shall be
so located as to cause minimum interference with the proper use of
streets, alleys and other public ways and places, and to cause minimum
interference with the rights or reasonable convenience of property
owners who adjoin any of the said streets, alleys or other public
ways and places.
E.
In case of any disturbance of pavement, sidewalk,
lawn, driveway or other surfacing, the company shall, at its own cost
and expense, in a manner approved by the Township and as set in the
Township ordinance, replace and restore all paving, sidewalk, driveway,
lawn or surface of any street or alley disturbed, in as reasonably
good condition as before said work was commenced.
F.
In the event that at any time during the period of
this franchise the Township shall lawfully elect to alter or change
the grade of the street, alley or other public way, the 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.
G.
The company shall not place poles or other fixtures
where the same will interfere with gas, electric, sewer or telephone
fixtures, water hydrant or main, and all such poles or other fixtures
placed in any street shall be placed and those placed in alleys shall
be placed close to the line of the lot abutting on said alley, and
then in such manner as not to interfere with the usual travel on said
streets, alleys and public ways.
H.
The company shall, on the request of any person holding
a building moving 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 company shall have the
authority to require such payment in advance. The company shall be
given not less than 48 hours advance notice to arrange for such temporary
wire changes.
I.
The company shall, subject to the Township Shade Tree
Commission rules, have the authority to trim trees, upon and overhanging
streets, alleys, sidewalks and public places of the Township so as
to prevent the branches of such trees from coming in contact with
the wires and cables of the company, all trimming to be done under
the supervision and direction of the Township and at the expense of
the company.
J.
The company shall provide, upon request and without
charge, basic service to any municipal buildings owned and operated
by the Township and to any public or parochial school located within
the Township by providing an energized cable to such building for
basic service. The cost of any internal wiring shall be borne by the
institution. If the Township fire alarms or emergency communications
systems can make use of the cable system without interference with
company's usage such use shall be permitted free of charge.
A.
It shall be the obligation of company to serve all
residents of the Township except to the extent that a lack of density
of homes, adverse terrain or other factors render providing service
impracticable, technically infeasible or economically noncompensatory.
For purposes of determining compliance with the provisions of this
section, and to provide for a reasonable and nondiscriminatory policy
governing extensions of cable service within the Township, which policy
was subject to public review in the public proceeding leading to the
award of this franchise, company shall extend service to such new
subscribers, at the normal installation charge and monthly rate for
customers of that classification, under the following terms and conditions:
(1)
Where the new subscriber, or nearest subscriber
or a group of new subscribers, is located within 500 feet of existing
trunk cable; and
(2)
Where the number of homes to be passed by such
new extension cable plant bears the same proportionable ratio to the
total amount of new cable plant as the average number of homes passed
per mile of existing cable plant.
B.
The company may make reasonable charges to the residents
for the cost of line extensions and may impose reasonable conditions
on any requested line extension.
The company shall have the authority to promulgate
such reasonable rules, regulations, terms and conditions governing
the conduct of its business as shall be reasonably necessary to enable
the 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 or of federal and state laws.
No increase in rates and charges nor changes
in procedure shall be effective except pursuant to a public notice
60 days prior thereto. The company shall be a party to any proceedings
in which its rights, privileges or interests would be affected and
shall be fully entitled to such due process rights as may be available
under applicable laws, ordinances, rules or regulations, especially
the Cable Communications Policy Act of 1984.
The company shall not sell or transfer its system
to another company, person or any other entity, not transfer any of
its rights, duties, privileges or obligations under this franchise
without written approval by the Township, provided, that such approval
shall not be unreasonably withheld if the vendee, assignee or lessee
of the company has filed with the appropriate official of the Township
an instrument duly executed, reciting the fact of such sale, assignment
or lease, accepting the terms of this franchise and agreeing to perform
all conditions thereof.
Company shall pay to the Township a sum of money
sufficient to reimburse for the expense incurred by it in connection
with the publication, preparation and passage of this ordinance and
the rights granted to company hereunder. Such payment shall be made
by company to the Township within 30 days after the Township shall
furnish company with a written statement of such expense.
A.
The company shall not allow its cable or other operations
to interfere with television reception of persons not served by the
company, nor shall the system interfere with, obstruct or hinder in
any manner, the operation of the various utilities serving the residents
of the Township;
B.
The company shall not, as to rates, charges, service,
facilities, rules, regulations or in any other respect, make or grant
any preference or advantage to any person, nor subject any person
to any prejudice or disadvantage;
C.
No landlord shall charge tenants a rate, as rental
or otherwise, for such cable television service in excess of the rate
being charged by the company for comparable service to single-family
homes.
A.
For the purpose of compelling compliance with their
grant and franchise, and to secure efficiency of public service at
reasonable rates, and the maintenance of the community cable system
in good condition during the full term of the grant, it is provided
that:
(1)
Upon failure of the company or its successors
or assigns to comply with any of the provisions of the grant; or
(2)
Upon default by the company in any of its obligations
hereunder, except for causes beyond the reasonable control of the
company, then upon the failure of the company within 30 days after
written notice from the municipality, to commence, and within a reasonable
time, complete the correction of such default or noncompliance, the
Township shall have the right to revoke and declare terminated this
ordinance and all rights of the company hereunder. In the event the
company shall be adjudged bankrupt or placed in receivership, the
Township may declare the special rights granted herein to be forfeited
and terminated. It is understood that during the reasonable interim
period while transfer of the system is being arranged, such period
being no less than six months and no greater than 24 months, the company
shall be required to continue service to the public as a trustee for
its successors in interest, subject to an accounting for net earnings
or losses during the interim period which are applicable to the company's
operation in the Township.
B.
The company shall at its own expense and cost promptly
remove or cause to be removed from the streets, alleys 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 under the authority of this franchise upon the revocation
or termination of this franchise, or the cessation of operation under
this franchise by the company, its successors and assigns. In the
event of such removal, company shall restore the streets or other
area from which such property has been removed to a condition satisfactory
to the Township. Any property of company permitted by the Township
to be abandoned in place, shall be abandoned only in such manner as
the Township may prescribe.
The company shall indicate its acceptance of
the terms of this ordinance and the granting of this franchise within
30 days after it receives notification of its adoption, which notice
shall be given to the company by the Township Solicitor, by certified
mail, return receipt requested, with a certified copy of this ordinance
enclosed herewith.
If the Township discovers that the company has
engaged in pronounced and continuous violations of the terms and provisions
of this ordinance and/or of any other applicable local, state or federal
regulations, the Township may file the appropriate action against
the company in a court of competent jurisdiction, seeking monetary
damages, equitable relief and/or any other appropriate remedy, including,
but not limited to, the revocation of the franchise herein granted.
A.
If any section, subsection, sentence, clause, phrase
or portion of this ordinance is for any reason held invalid or unconstitutional,
such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the remaining
portions hereof.
B.
Should any provision of this franchise be inconsistent
or at variance with any rule, regulation or policy, in whole or in
part, of the Federal Communications Commission or any other agency
having jurisdiction, such provision shall be invalid, but the remaining
provisions hereof shall not be affected thereby.
[Adopted 1-22-2019 by Ord. No. 2018-8[1]]
[1]
Editor's Note: This ordinance also superseded former Art.
II, Blue Ridge Cable Franchise, adopted 7-2-1992 by Ord. No. 1992-2.
A.
Grant of authority.
(1)
Pursuant to the Cable Act, the regulations of the FCC and Pennsylvania
law, the Township hereby grants a nonexclusive and revocable franchise
to franchisee, authorizing and permitting franchisee to construct,
own, operate, extend, and maintain a cable system in the Township's
public rights-of-way.
(2)
Subject to the terms and conditions contained herein, the Township
hereby grants to franchisee the right to construct, own, extend, install,
operate, maintain, upgrade and rebuild a cable system, including such
wires, cables, fiber, conductors, ducts, conduits, amplifiers, pedestals,
attachments and other property and equipment as are necessary and
appropriate to the operation of the cable system in, under, over,
along, across and upon the streets, lanes, avenues, alleys, sidewalks,
bridges, highways and other public places and rights-of-way under
the jurisdiction of the Township, including property over which the
Township has a sufficient easement or right-of-way, for the purpose
of reception, transmission, amplification, origination, distribution
or redistribution of video, audio, and other electronic signals and
impulses as permitted by applicable law.
(3)
Notwithstanding this authority, franchisee shall obtain all
necessary government permits for occupying or disturbing any public
places and/or rights-of-way. Prior to obtaining such permits, franchisee
shall provide the Township with all reasonable information and documentation
that the Township requires. Franchisee shall comply with all other
government regulations and requirements thereto.
B.
Term of franchise. The term of this agreement shall be for a period
of 10 years commencing on the effective date and expiring on November
20, 2027, unless the franchise is terminated prior to the expiration
date in accordance with the terms and conditions of this agreement.
C.
Nonexclusivity. This franchise granted to franchisee shall be nonexclusive.
Nothing in this agreement shall affect the right of the Township to
grant another franchise to construct, operate or maintain a cable
system or for any other purpose.
D.
Police powers. Franchisee's rights under this agreement are
subject to the police powers of the Township to adopt and enforce
general laws and regulations necessary for the safety and welfare
of the public. Such laws and regulations are separate and distinct
from the terms and conditions contained in this agreement.
E.
No waiver of rights. No course of dealing between the Township and
franchisee, nor any delay on the part of the Township in exercising
any rights hereunder, shall operate as a waiver of any such rights
of the Township or acquiescence in the actions of franchisee in contravention
of such rights, except to the extent expressly waived by the Township.
A.
Franchise fees. Franchisee shall pay to the Township an amount equal to 5% of the gross revenues derived from the operation of its cable system in the Township. The term "gross revenues" is defined in § A185-33, Definitions, below. Franchisee shall not deduct or otherwise credit against the franchise fee any tax, fee or assessment of general applicability. The Township may amend the franchise fee upon 60 days' written notice to franchisee provided that the franchise fee may not exceed 5%. In the event that federal law is amended to authorize a franchise fee higher than 5%, the Township may, at its discretion, direct franchisee to pay a higher franchise fee after notice to franchise and action by the Board of Supervisors of the Township at a public meeting, and the franchisee reserves the right to treat the fee as a pass-through.
B.
Quarterly payments. Franchise fee payments to the Township under
this provision shall be computed at the end of each calendar quarter
and shall be due and payable within 45 days after the end of each
calendar quarter. 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 January 31 (for
the fourth quarter) of each year. In the event that any franchise
fee payment is not made on or before the applicable date, then interest
shall be added at the annual rate of 6% of the amount of franchise
fee revenue due to the Township. No acceptance of any percent shall
be construed as an accord that the amount paid is in fact the correct
amount, nor shall acceptance of any payment be construed as a release
of any claim the Township may have for additional sums payable under
this agreement.
C.
Quarterly reports. Each franchise fee payment shall be accompanied
by a written report containing an accurate statement of franchisee's
gross revenues received for cable services for the quarter in connection
with the operation of franchisee's cable system and a brief statement
showing the basis for computation of fees. The statement shall contain
a line item for every source of revenue received and the amount of
revenue received from each source. The report shall be verified by
an authorized representative of franchisee.
D.
Audits.
(1)
On an annual basis, upon a minimum of 30 days' prior written notice, the Township shall have the right to conduct an independent audit of franchisee's records reasonably related to the sources, amounts, and computation of gross revenues in accordance with generally accepted accounting principles. Such records shall be kept or made available to the Township at the notice location for franchisee specified in § A185-32C below. Provided the documents requested are not unduly burdensome, any reproduction of such records for purposes of inspection shall be performed at franchisee's expense. If the audit shows that franchise fees have been underpaid then franchisee shall pay the underpaid amount and monetary fines of 5% of the underpayment. If franchise fees have been underpaid by 5% or more, then franchisee shall also pay the reasonable cost of the audit.
(2)
At the time of the annual payment of the franchise fee, the
franchisee shall furnish the Township with such information as the
Township shall reasonably require with respect to the franchisee's
services within the Township for such period.
E.
Level playing field.
(1)
If the Township grants an additional franchise for construction
and/or operation of a cable system or open video system, and such
additional franchise imposes any material obligations, as defined
below, that are more favorable or less burdensome to the competitive
entity than those contained in this agreement, then Blue Ridge may
request that the Township amend this agreement to make such material
obligation(s) consistent with the franchise of the competitive entity.
A.
Technical requirement.
(1)
Franchisee shall operate, maintain, construct and extend the
cable system so as to provide high quality signals and reliable delivery
of one-way and two-way cable services for all programming services
throughout all parts of the Township where franchisee's cable
system exists. The cable system shall meet or exceed any and all technical
performance standards of the FCC, the National Electrical Safety Code,
the National Electric Code and any other applicable federal laws and
the law, ordinances and construction standards of the Commonwealth
of Pennsylvania and the Township.
(2)
The cable system shall provide signals that are reasonably free
from co-channel interference. Should the Township provide written
notice to franchisee that it has received a historical record of complaints
of co-channel interference from subscribers, then franchisee shall
take reasonable and necessary actions to remove such co-channel interference.
(3)
Standby power at the headend(s) shall be provided for a minimum
of eight hours in the event of an outage. The power supplies serving
the nodes and distribution shall be capable of providing power for
not less than six hours in the event of an electrical outage. Standby
power must activate automatically upon the failure of commercial utility
power.
B.
Area to be served.
(1)
Service shall be provided to every dwelling occupied by a person
requesting cable service provided that franchisee is able to obtain
from the property owners any necessary easements and/or permits in
accordance with Section 621(a)(2) of the Cable Act. Subject to the
other conditions contained in this section, franchisee shall extend
the cable system into all areas within the Township in which franchisee's
cable system exists, where there is a minimum of 30 subscribers per
linear plant mile of aerial cable and 70 subscribers per underground
mile of cable, calculated from the end of the nearest trunk line.
For the purpose of this section, a person becomes a subscriber by
signing an agreement in which the person agrees to become a subscriber
upon completion of the line extension, weather permitting and subject
to pole attachment delays. Franchisee shall complete said extensions
within three months of notification to franchisee by the Township
that an area has met the minimum density standard set forth herein.
Franchisee's obligation hereunder shall be subject to the timely
performance of walk-out, make ready and location of all underground
utilities.
(2)
Any dwelling unit within 125 feet aerial distance of the cable
plant shall be entitled to a standard installation rate. For any dwelling
unit in excess of 125 feet aerial distance or that requires an underground
installation, franchisee shall extend cable service at a rate not
to exceed franchisee's actual cost of installation from its main
distribution system.
(3)
All installations of wires and/or equipment by franchisee shall
be underground where required by the Township. In requiring such underground
installations, the Township shall treat franchisee the same as other
similarly situated entities.
C.
Permits. Franchisee shall apply to the Township for all required permits and shall not undertake any activities in the public rights-of-way subject to a permit without receipt of such permit, issuance of which shall not be unreasonably withheld by the Township. Franchisee shall pay a franchise fee pursuant to § A185-21 above and not be required to pay any permit fees. The Township shall waive any applicable permit application fee, provided, however, franchisee shall pay any and all required inspection fees when the work performed pursuant to the applicable permit requires inspection(s) by the Township or its agents. Further, franchisee shall provide two business days' advanced written notice to the Township Manager prior to commencing any work pursuant to a permit.
D.
Repairs and restoration.
(1)
Whenever franchisee or any agent, including any subcontractor, takes up or disturbs any pavement, sidewalk or other improvement of any public or private way or place, the same shall be replaced and the surface restored in as good condition as before the disturbance within 10 business days of the completion of the disturbance. Subject to § A185-28A of this agreement, upon failure of franchisee to comply within the time specified, the Township may cause proper restoration and repairs to be made and the expense of such work shall be paid by franchisee upon demand by the Township along with any monetary fines applied by the Township in accordance with § A185-28, Franchise violations, damages and revocation, below.
(2)
Whenever franchisee or any agent, including any subcontractor,
shall install, operate or maintain equipment, cable, or wires, it
shall avoid damage and injury to property, including structures, improvements
and trees in and along the routes authorized by the Township, except
as may be approved by the Township if required for the proper installation,
operation and maintenance of such equipment, cable, or wires. Franchisee
shall promptly repair and restore any private property that is damaged
as a result of construction, installation, repair or maintenance of
the cable system within 10 business days.
(3)
Franchisee's operating, construction, repair and maintenance
personnel, including all agents and subcontractors, shall be trained
in the use of all equipment and the safe operation of vehicles. Franchisee's
operating, construction, repair and maintenance personnel shall follow
all safety procedures required by all applicable federal, state and
local laws and regulations. All areas of the cable system shall be
routinely inspected and maintained so that conditions that could develop
into safety hazards for the public and/or operating and maintenance
personnel may be corrected before they become a hazard. Franchisee
shall install and maintain its wires, cables, fixtures, and other
equipment in such a manner as shall not interfere with any installations
of the Township or any public utility serving the Township.
(4)
Whenever franchisee or any agent, including any subcontractor,
shall disturb any pavement, sidewalk or other public property in order
to perform any underground activity, it shall utilize the Pennsylvania
One Call System prior to any such disturbance. It shall notify the
Pennsylvania One Call System no less than three and no more than 10
working days in advance of any such disturbance and adhere to any
additional requirements which the commonwealth may establish in the
future. Franchisee shall also adhere to all requirements of the Pennsylvania
Underground Utility Line Protection Act.[1]
[1]
Editor's Note: See 73 P.S. § 176 et seq.
(5)
All structures and all lines, equipment and connections in,
over, under, and upon streets, sidewalks, alleys, and public and private
ways and places of the Township, wherever situated or located, shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair. Franchisee shall not keep or maintain
disconnected or loose cables, lines, or wires on utility poles or
anywhere else in the public rights-of-way.
E.
System monitoring. Within 60 days of completing any construction,
and otherwise on an annual basis, franchisee shall conduct signal
monitoring and system performance tests in accordance with the regulations
of the FCC. Such capability shall enable franchisee to monitor the
signal quality of all channels delivered on the cable system.
F.
Service area maps. Franchisee shall provide to the Township for its
exclusive use and shall maintain at its local offices a complete set
of franchisee service area maps of the Township, on which will be
shown the type of facilities that franchisee maintains in the Township,
those areas in which its facilities exist, and the location of all
streets. Such maps shall be updated and made available to the Township
for inspection upon reasonable advanced written notice.
G.
Building moves. In accordance with applicable laws, franchisee shall,
upon the request of any person holding a building moving permit issued
by the Township, temporarily raise or lower its wires to permit the
moving of the building. Franchisee shall be given at least 30 days'
advance notice to arrange for such temporary wire changes. If the
building to be moved is owned or operated by the Township, franchisee
shall raise or lower its wires at no cost to the Township.
H.
Disconnection and relocation.
(1)
Franchisee shall, at no cost to the Township, protect, support,
temporarily disconnect, relocate in the same street, or other public
way and place, or remove from any street or any other public way or
place, any of its property as required by the Township or its designee
by reason of traffic conditions, public safety, street construction,
change or establishment of street grade, or the construction of any
public improvement or structure.
(2)
In requiring franchisee to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the Township shall
treat franchisee the same as, and require no more of franchisee than,
any similarly situated entity.
I.
Emergency removal of equipment. If, at any time, in case of fire
or other disaster in the Township, it shall be necessary, in the reasonable
judgment of the Township or its agent, to cut or move any of the wires,
cable or equipment of the cable system, the Township shall have the
right to do so without cost or liability, provided that, wherever
possible, the Township shall give franchisee notice and the ability
to relocate wires, cable or other equipment prior to any action by
the Township with respect to such wires, cable, or equipment.
J.
Tree trimming. Franchisee, or its agents, including subcontractors,
shall have the authority to trim trees upon and overhanging public
streets, alleys, sidewalks and the public rights-of-way so as to prevent
the branches of such trees from coming in contact with the wires,
cables or other equipment of franchisee in accordance with applicable
laws and regulations. Franchisee shall reasonably compensate the Township
or other property owner for any damages caused by such tree trimming
or removal. If franchisee or its agents, including subcontractors,
wish to cut down and remove any tree or trees as may be necessary
for the installation and maintenance of its plant and/or equipment,
it shall apply to Township Commissioners for permission and, if permission
is granted, shall perform such cutting and removal in accordance with
accepted arboreal standards and with the regulations of the Township.
Franchisee shall notify adjacent property owners at least seven days
prior to any tree removal.
A.
System specifications. Franchisee shall design, construct and maintain
a cable system covering the Township that utilizes fiber optic backbone
connections from headend to hubs, hubs to hubs, and hubs to nodes.
This cable system shall be built for digital television standards
with a bandwidth no less than 750 MHz and shall allocate sufficient
portion of the bandwidth to deliver reliable two-way cable services
(the "bandwidth"). The bandwidth must be obtained within three years
after execution of this agreement. The cable system shall include
nodes that serve no more than 600 dwellings on average.
B.
State of the art.
(1)
Franchisee and the Township acknowledge that the technology
of cable systems is an evolving field. Franchisee's cable system
in the Township shall be capable of offering cable services that are
comparable to other cable systems owned or managed by franchisee or
its affiliated entities in the Commonwealth of Pennsylvania ("comparable
systems") pursuant to the terms of this section. The Township may
send a written notice to franchisee, not to exceed one request every
two years, requesting information on cable services offered by such
comparable systems. Within 60 days of receiving such request, franchisee
shall provide the Township with information on any cable services
that are offered in any of the comparable systems but not being offered
in the Township, the percentage of total subscribers in such comparable
systems to whom such cable services are available, and when franchisee
anticipates making such cable services available in the Township.
(2)
If the identified cable services are being offered by franchisee
and/or its affiliated entities to at least 25% of the total subscribers
in the comparable systems, then the Township may require that franchisee
make such cable services available in the Township. Should the Township
determine that franchisee shall commence provision of such cable services,
then the Township and franchisee shall enter into good faith discussions
to negotiate a schedule for deployment of such cable services. The
discussions shall take into consideration the benefits from the provision
of such cable services, the cost of implementing them in the Township,
and the impact, if any, on subscriber rates.
A.
Office hours and telephone availability.
(1)
Franchisee shall maintain a business office that is conveniently located and which shall be open during normal business hours. The term "normal business hours" is defined in § A185-33, Definitions, below.
(2)
Franchisee shall provide and maintain a toll-free telephone
access line that will be available to subscribers 24 hours a day,
seven days a week. Trained representatives shall be available to respond
to customer telephone inquiries during normal business hours. After
normal business hours, the access line may be answered by a service
or an automated response system. Inquiries received after normal business
hours must be responded to by a trained company representative on
the next business day.
(3)
Under normal operating conditions, telephone answering time by a customer representative, including wait time, shall not exceed 30 seconds after the connection is made. 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. The term "normal operating conditions" is defined in § A185-33, Definitions, below.
(4)
Under normal operating conditions, the customer shall receive
a busy signal less than 3% of the time.
(5)
Franchisee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering requirements above unless a historical record of complaints indicates a clear failure to comply. If the Township determines, after receiving complaints itself and/or receiving a record of complaints made to franchisee in accordance with § A185-28 below, that there is a clear failure to comply with the telephone answering requirements above, the Township shall notify franchisee that it must measure its compliance with these requirements for the next 90 days and report to the Township with its results.
B.
Installations and service calls.
(1)
Franchisee shall maintain a competent staff of trained employees
sufficient to provide adequate and prompt service to its subscribers.
Any franchisee employee or agent, including any subcontractor, who
personally visits any residential dwelling shall display a photo identification
badge. Any vehicle used for installation, operation or maintenance
activities by any franchisee employee or agent, including any subcontractor,
shall prominently display the franchisee's name and/or logo.
(2)
Under normal operating conditions, standard installations will
be performed within seven business days after an order has been placed.
"Standard" installations are those aerial installations that are located
up to 125 feet from the existing distribution system.
(3)
Excluding conditions beyond its control, franchisee shall begin working on a service interruption promptly and in no event later than 24 hours after the interruption becomes known and shall diligently pursue to completion. Notice of a service interruption of a single subscriber shall give rise to this obligation on behalf of franchisee. The term "service interruption" is defined in § A185-33, Definitions, below. All other service calls not affecting public health, safety or welfare shall occur within a maximum of 48 hours after notice to franchisee or scheduled at the convenience of the customer and shall be diligently pursued to completion.
(4)
Upon scheduling of appointments with the customer for installations,
service calls and other activities, franchisee shall provide the customer
with either a specific time or an "appointment window" of a maximum
of four hours during normal business hours. Franchisee may schedule
service calls and installation activities outside of normal business
hours for the express convenience of the customer.
(5)
Franchisee may not cancel an appointment with a customer after
the close of business on the business day prior to the scheduled appointment.
If, at any time, an installer or technician is running late, an attempt
to contact the customer must be made prior to the time of the appointment.
If the appointment must be rescheduled, it must be done so at a time
that is convenient for the customer.
C.
Notices.
(1)
Franchisee shall provide written notice to each subscriber upon
initial subscription, at intervals not more than one year thereafter
to each subscriber and the Township, and at any time upon request,
regarding each of the following areas:
(a)
Products and services offered;
(b)
Prices and options for programming services and conditions of
subscription to programming and other services;
(c)
Channel positions and information regarding programming carried
on the cable system such that the programming information corresponds
to the channel positions;
(d)
Installation and service maintenance policies;
(e)
Instructions on how to use the cable service and any converters;
(f)
Customer service requirements contained in the 47 CFR 76.309
of the Code of Federal Regulations;
(g)
Billing and customer complaint procedures;
(h)
Policy and procedures for disconnecting or terminating a subscriber's
service for cause;
(i)
Franchisee's address, telephone number and office hours;
(k)
A notice of subscriber privacy rights as required by federal
law.
(2)
Franchisee shall notify subscribers and the Township in writing
of any changes, within its control, in rates, substantial changes
in programming services or channel positions a minimum of 30 days
in advance of such changes. Franchisee 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 Township on the transaction between franchisee
and the subscriber.
D.
Billing.
(1)
Bills shall be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to,
basic service tier, cable programming services tier 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.
(2)
Franchisee shall not assess late fees for nonpayment of a current
bill until at least 30 days have elapsed since the mailing of the
bill by franchisee.
E.
Customer complaint procedures. Franchisee shall establish clear written
procedures for resolving all customer complaints, which shall include
at least the following:
(1)
Franchisee shall provide the customer with a written response
to a written complaint within 30 days of its receipt. Such response
shall include the results of its inquiry into the subject matter of
the complaint, its conclusions based on the inquiry, and its decision
in response to the complaint.
(2)
If the Township is contacted directly about a customer complaint,
it shall notify franchisee in writing. When franchisee receives such
notification, the time period for franchisee to respond as required
above shall commence.
(3)
Any subscriber who, in good faith, disputes all or part of any
bill sent by franchisee has the option of withholding the disputed
amount, without a late fee, until franchisee has investigated the
dispute in good faith and has made a determination that the amount
is owed provided that:
(4)
Franchisee shall maintain customer complaint records, which
shall contain the date each complaint is received, the name and address
of the affected subscriber, a description of the complaint, the date
of resolution of the complaint, and a description of the resolution.
Said records may be maintained electronically.
F.
Disconnection. Franchisee may disconnect or terminate a subscriber's
service for cause, including but not limited to:
(1)
Franchisee will comply with all PUC regulations in regard to
all regulated services.
(2)
If franchisee has provided at least 10 days' written notice
to the affected subscriber prior to disconnection, specifying the
effective date after which cable services are subject to disconnection;
and
(3)
If there is no pending written dispute with franchisee regarding
the bill; or
(4)
If at any time and without notice, franchisee determines in
good faith that subscriber has tampered with or abused franchisee's
equipment or is engaged in theft of cable service.
(5)
Subscriber has engaged in or made threats of violence, harassment
against franchisee or its contractors.
G.
Credit for service outage. In the event that there is a service interruption
to any subscriber for 12 or more consecutive hours, except for those
covered by force majeur, it shall grant such subscriber, upon such
subscriber's written or oral request, a pro rata credit or rebate,
on a daily basis, of that portion of the service charge during the
next consecutive billing cycle, or, at its option, apply such credit
to any outstanding balance that is currently due.
H.
Privacy.
(1)
Franchisee shall protect and abide by the rights of privacy
of every subscriber and shall not violate such rights through the
use of any device or signal associated with the cable system. Franchisee
shall at all times comply with the privacy provisions of Section 631
of the Cable Act and all other applicable federal and state privacy
laws and regulations.
(2)
Franchisee shall be responsible for carrying out and enforcing
such privacy policy and shall at all times maintain adequate physical,
technical and administrative security safeguards to ensure that personal
subscriber information is handled and protected strictly in accordance
with this policy and all applicable laws and regulations.
(3)
Except as otherwise provided under federal or state law, neither
franchisee nor its designee shall tap, monitor, arrange for the tapping
or monitoring, or permit any person to tap or monitor, any cable,
line, signal, input device, or subscriber outlet or receiver for any
purpose, without the prior written authorization of the affected subscriber
or user, provided, however, that franchisee 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. Franchisee shall
not record or retain any information transmitted between a subscriber
and any third party, except as required for lawful business purposes.
(4)
Except as permitted by Section 631 of the Cable Act, as amended,
neither franchisee nor its designee nor its employees shall make available
to any third party, including the Township, information concerning
the viewing habits or subscription package decisions of any individual
subscriber. If a court authorizes or orders such disclosure, franchisee
shall notify the subscriber prior to disclosure, unless such notification
is otherwise prohibited by applicable law or the court.
(5)
Upon a request by a subscriber, franchisee shall make available
for inspection at a reasonable time and place all personal subscriber
information that franchisee maintains regarding said subscriber. Franchisee
shall ensure that all information related to billing and service requests
is accurate and up to date and shall promptly correct any errors upon
discovery.
A.
Services to community facilities.
(1)
Upon request, franchisee shall, at no charge to the Township,
provide the following services to all present and future public facilities
in franchisee's service area including, but not limited to, the
Township Municipal Building, police stations, fire companies, ambulance
services, public works buildings, municipal authorities, recreational
facilities, community centers, senior citizens centers, all public
and private school buildings and public libraries and for any underground
and/or installation beyond 200 feet from the existing cable plant.
(2)
Within three months of the effective date of this agreement,
one cable drop, outlet and basic and expanded basic services (or equivalent)
package to each building identified in Exhibit A.[1] No charge shall be made for installation or service, except
that franchisee may charge for installation and service for more than
one drop in each building.
[1]
Editor's Note: Exhibit A is included as an attachment to this chapter.
(3)
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 include "home schools" or "cyber
schools," or any other educational situation that does not meet the
specific criteria set forth herein. During the term of this agreement,
new public facilities shall be eligible to receive such complementary
service to the extent that they meet the qualifications as set forth
herein above as permitted free locations.
B.
Payment of expenses. All advertising or printing fees or expenses
incurred by the Township in connection with the preparation of this
agreement, preparation and passage of any resolution or ordinance
authorizing execution of this agreement and conducting any public
hearing(s) associated therewith shall be paid by the franchisee to
the Township within 30 days' of written notice by the Township
to the franchisee. In addition, within the foregoing thirty-day period,
franchisee shall pay the Township up to $1,000 for legal costs associated
with preparation of the ordinance authorizing execution of this agreement
and preparation of the public notice for any public hearing associated
therewith.
C.
EG channel.
(1)
The Township reserves the right to obtain from Blue Ridge, within
60 days of a written request by the Township, an educational and governmental
("EG") channel in accordance with Section 611 of the Cable Act for
exclusive use by the Township and/or its designee. The EG channel
shall be used for programming related to governmental and/or educational
activities. The Township shall have complete control over the content,
scheduling, administration and all other aspects of the EG channel
and may delegate certain or all such functions to an appropriate designee.
Blue Ridge shall not exercise any editorial control over EG channel
programming.
(2)
The Township may obtain the EG channel pursuant to this Subsection C upon the earlier of the following two events: 1) when Blue Ridge has converted its cable system to a fully digitized transmission (i.e., Blue Ridge no longer utilizes the analog spectrum for transmitting cable programming); or 2) four years from the effective date.
(3)
To enable the Township and/or its designees to utilize the EG
channel, the Township shall select, and Blue Ridge shall connect to
the cable system, a mutually agreeable remote origination point. Blue
Ridge shall provide and install, at its sole cost and expense, within
60 days of receiving notice from the Township that it wishes to obtain
an EG channel, cable, wire, lines and/or other necessary signal distribution
equipment such that live or tape playback of cablecasts or other programming
can originate from the selected location and be distributed via the
cable system to subscribers in the Township. These cables, wires,
lines and other signal distribution equipment shall be collectively
known as the "return line." Blue Ridge shall distribute the video
signals for the EG channel in high quality resolution and shall cablecast
the signals on the digital basic service tier.
(4)
The Township and franchisee agree that any and all costs incurred
by franchisee for providing the EG channel and supporting such channel,
including any and all equipment and maintenance and repair, may be
designated as "costs of franchise requirements" or "external costs"
as defined by the FCC.
(5)
Blue Ridge shall not be obliged to provide the Township with
"studio equipment" (i.e., camera, lights, microphones, office furnishings,
etc.) under this EG channel provision.
A.
Right to inspect.
(1)
The Township shall have the right, upon seven business days' written notice and during normal business hours, to inspect at the notice location for franchisee specified in § A185-32C below all documents, records and other pertinent information maintained by franchisee which relate to the terms of this agreement.
(2)
In addition, franchisee shall maintain for inspection by the
public and the Township all records required by the FCC and as specified
in 47 CFR 76.305 in the manner specified therein.
B.
Right to conduct compliance review. The Township or its representatives
may conduct a full compliance review, including possible public hearings,
with respect to whether franchisee has complied with any material
term of this agreement so long as it provides franchisee with 30 days'
written notice in advance of the commencement of any such reviews
or public hearings. Such compliance reviews may not be conducted more
frequently than once in any twelve-month period.
C.
Reserved authority. The Township reserves the regulatory authority
arising from the Cable Act, any amendments thereto, and any other
relevant federal, state or local laws or regulations.
A.
Quarterly franchise fee report. In accordance with § A185-21C of this agreement, franchisee shall accompany each quarterly franchise fee payment with a written report containing an accurate statement of franchisee's gross revenues received for the quarter in connection with the operation of franchisee's cable system and a brief statement showing the basis for computation of fees. The statement shall contain a line item for every source of revenue received and the amount of revenue received from each source. The report shall be verified by an authorized representative of franchisee.
B.
Annual financial report. Within 30 days of a written request, Blue
Ridge shall submit to the Township a statement from its auditors and
certified by Blue Ridge's Chief Financial Officer that Blue Ridge
is solvent and has the financial means to meet its obligations under
this agreement.
C.
Quarterly customer complaint report. Upon written request, franchisee shall submit to the Township on a quarterly basis a report showing the number of complaints, as defined in § A185-33, Definitions, below that have generated a work order or necessitated a response originating from the Township received during the reporting period. The report shall indicate the number of such complaints, the dates they were received, summary descriptions of such complaints, the dates such complaints were resolved and summary descriptions of the resolutions. The reports may be in the form of "trouble reports" that are internally generated by franchise.
D.
Government reports. Franchisee shall provide to the Township, upon written request, copies of any and all communications, reports, documents, pleadings and notifications of any kind which franchisee or any of its affiliated entities have submitted to any federal, state or local regulatory agencies, courts or other governmental bodies if such documents relate to franchisee's cable system within the Township. The term "affiliated entity" is defined in § A185-33, Definitions, below. Franchisee shall provide copies of such documents no later than 30 days after their request. If franchisee marks any such documents as confidential and provides the Township with an explanation of their confidentiality, the Township shall treat such documents as confidential so long as it is permitted to do so under applicable law.
E.
System performance test reports. Upon written request, franchisee shall submit to the Township its most recent system performance test reports of its cable system in the Township as required by the FCC and § A185-22E of this agreement. These reports shall detail the results of the franchisee's system performance tests.
A.
Violations.
(1)
If the Township has reason to believe that franchisee violated
any provision of this agreement, it shall notify franchisee in writing
of the nature of such violation and the section of this agreement
that it believes has been violated. If the Township does not notify
franchisee of any violation of this agreement, it shall not operate
as a waiver of any rights of the Township hereunder or pursuant to
applicable law.
(2)
Franchisee shall have 30 days to cure such violation after written
notice is received by taking appropriate steps to comply with the
terms of this agreement. If the nature of the violation is such that,
in the Township's reasonable judgment, it cannot be fully cured
within 30 days due to circumstances outside of franchisee's control,
the period of time in which franchisee must cure the violation may
be extended by the Township in writing for such additional time necessary
to complete the cure, provided that franchisee shall have promptly
commenced to cure and is diligently pursuing its efforts to cure in
the reasonable judgment of the Township.
(3)
If the violation has not been cured within the time allowed under § A185-28A(2) above, then franchisee shall be liable for liquidated damages and the Township's costs in accordance with § A185-28B below.
B.
Liquidated damages. Because franchisee's failure to comply with provisions of this agreement will result in injury to the Township and because it will be difficult to measure the extent of such injury, the Township may assess liquidated damages against franchisee in the amount of $300 per day for each day the violation continues, provided franchisee has had an opportunity to cure in accordance with § A185-28A(2). Such damages shall not be a substitute for specific performance by franchisee, but shall be in addition to such performance.
C.
Performance bond.
(1)
Franchisee shall obtain and maintain during the franchise term, at its sole cost and expense, a performance bond running to the Township with a company surety licensed to do business in the Commonwealth of Pennsylvania and satisfactory to the Township to ensure franchisee's faithful performance of its obligations. The performance bond shall provide that the Township may recover from the principal and surety any and all liquidated damages and/or compensatory damages incurred by the Township for franchisee's violations of this agreement, after notice and opportunity to cure, in accordance with § A185-28A and B above.
(2)
The performance bond shall be in the amount of $30,000. Franchisee
shall not reduce, cancel or materially change said bond from the requirement
contained herein without the express prior written permission of the
Township.
D.
Revocation.
(1)
In addition to the other rights, powers and remedies retained
by the Township under this agreement, the Township reserves the separate
and distinct right to revoke this franchise if:
(a)
Franchisee practices any fraud or deceit upon the Township in
its operation of its cable system or any other activities pursuant
to this agreement;
(b)
Franchisee seeks, or an involuntary case is brought against
franchisee seeking liquidation, reorganization, or other relief under
any bankruptcy, insolvency or other similar law or seeking the appointment
of a trustee, receiver, custodian or other similar official of a substantial
part of franchisee's property and such proceeding shall remain
undismissed for a period of 60 days.
(c)
Subject to the limitations contained in § A185-31A, franchisee transfers, assigns or changes the control of this franchise, the cable system or any significant portion thereof, or more than 35% of the equitable ownership of the cable system without the consent of the Township;
(d)
Franchisee repeatedly fails, after notice and opportunity to cure, to maintain signal quality pursuant to the standards provided for by the FCC or the technical requirements set forth in § A185-22A of this agreement;
(e)
Franchisee repeatedly violates, after notice and opportunity
to cure, one or more of the material terms or conditions of this agreement.
(2)
The foregoing shall not constitute a violation of a material
term or condition if the violation occurs without the fault of franchisee
or occurs as a result of circumstances beyond its control in the reasonable
judgment of the Township. Franchisee shall not be excused from the
performance of any of its obligations under this franchise by mere
economic hardship or by the misfeasance or malfeasance of its directors,
officers or employees.
(3)
A revocation shall be declared only by a written decision of
the Township Board of Commissioners after an appropriate public hearing
that shall afford franchisee due process and full opportunity to be
heard and to respond to any notice of grounds to terminate. All notice
requirements shall be met by providing franchisee at least 30 days'
prior written notice of any public hearing concerning the proposed
revocation of this franchise. Such notice shall state the grounds
for revocation. The Township Board of Commissioners, after a public
hearing and upon finding the existence of grounds for revocation,
may either declare this franchise terminated or excuse such grounds
upon a showing by franchisee of mitigating circumstances or good cause
for the existence of such grounds.
A.
Channel capacity. Franchisee shall meet or exceed programming and
channel capacity requirements set forth in this agreement and required
by federal, state and local law and regulations.
B.
Broadcast channels. To the extent required by federal law, franchisee shall provide all subscribers with basic service including, but not limited to: 1) all broadcast television signals carried in fulfillment of the requirements of Section 614 of the Cable Act; 2) qualified local noncommercial educational television signals; 3) PEG channel (defined by § A185-25C above), and 4) the local origination channel. All such signals shall be delivered to subscribers in high quality resolution.
C.
Signal scrambling. Franchisee shall at all times comply with FCC
regulations regarding scrambling or other encryption of audio and
video signals.
D.
Continuity of service. It shall be the right of all subscribers to continue to receive service from franchisee provided their financial and other obligations to franchisee are honored. Subject to the force majeure provisions in § A185-32 of this agreement, franchisee shall use commercially reasonable efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. For the purpose of construction, routine repairing or testing of the cable system, franchisee shall use commercially reasonable efforts to interrupt service only during periods of minimum use. When necessary service interruptions of more than 24 hours can be anticipated, franchisee shall notify subscribers in advance of such service interruption.
E.
Parental control capability. Upon request, franchisee shall provide
subscribers with the capability to control the reception of any video
and/or audio channel on the cable system providing sexually explicit
adult programming.
A.
Indemnification. Franchisee shall indemnify, defend, save and hold
harmless the Township, its officers, agents and employees, from any
and all claims for injury, loss, liability, cost or expense arising
in whole or in part from, incident to or connected with any act or
omission of franchisee, its officers, agents or employees, including
contractors and subcontractors, arising out of or in any way connected
to, but not limited to, the construction, installation, upgrade, reconstruction,
operation, maintenance or removal of the cable system or any other
equipment or facilities. The obligation to indemnify, defend, save
and hold the Township harmless shall include, but not be limited to,
the obligation to pay judgments, injuries, liabilities, damages, reasonable
attorneys' fees, expert fees, court costs and all other costs
of such indemnification.
B.
Insurance.
(1)
Franchisee shall maintain insurance throughout the term of this
agreement with the Township as an additional primary insured, with
an insurance company which is authorized to conduct business in Pennsylvania
and which has an A.M. Best rating (or equivalent) no less than "A,"
indemnifying the Township from and against any and all claims for
injury or damage to persons or property, both real and personal, caused
by the construction, installation, reconstruction, operation, maintenance
or removal of the cable system by franchisee or any of its contractors,
subcontractors, agents or employees in the following amounts:
(a)
The amount of such insurance against liability for damage to
property shall be no less than $1,000,000 as to any one occurrence.
(b)
The amount of such insurance against liability for injury or
death to any person shall be no less than $1,000,000.
(c)
The amount of such insurance for excess liability shall be $3,000,000
in umbrella form.
(d)
The amount of such insurance against all claims arising out
of the operation of motor vehicles and general tort or contract liability
shall be $1,000,000.
(2)
All insurance coverage shall be maintained throughout the period
of this agreement. All insurance policies shall contain a provision
that the Township will receive 30 days' written notice prior
to any changes or cancellation of the policy. All expenses incurred
for said insurance shall be at no cost to the Township.
(3)
An insurance policy or policies and necessary endorsements evidencing
the insurance coverage required herein shall be provided by franchisee
to the Township within 30 days of the effective date of this agreement.
A.
Transfer, assignment or change in control.
(1)
Neither franchisee 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 this agreement without the prior written consent of the
Township, except for financial actions or other intracorporate transactions
that do not result in a change of control or ownership of franchisee
or any affiliated entity as may become franchisee's successor
in interest with respect to the cable system or this agreement.
(2)
Neither franchisee nor its parent nor any affiliated entity
shall transfer or assign, through its own action or by operation of
law, its control of the cable system or of this agreement without
the prior written consent of the Township.
(3)
Neither franchisee nor its parent nor any affiliated entity
shall sell, convey, transfer, exchange or release more than 35% of
its equitable ownership in the cable system without the prior written
consent of the Township.
(4)
Franchisee shall make written application to the Township of any transfer, change in control or assignment as described in Subsections A(1) through (3) and shall provide all information required by FCC Form 394 and any other applicable federal, state, and local statutes and regulations regarding transfer or assignment. The Township shall have 120 days from the receipt of all required information to take action on the transfer or assignment.
(5)
Any consent by the Township for any transfer or assignment of
this agreement described above shall not be effective until the proposed
transferee or assignee shall have executed a legally binding document
stating that it shall be bound by all the terms and conditions contained
in this agreement.
(6)
No such prior written consent shall be required for an assignment
or transfer of this agreement to an affiliated entity. In the event
of an assignment or transfer to an affiliated entity, franchisee shall
provide the Township with no less than 30 days' advance written
notice of such transfer.
(7)
In the event that franchisee, its parent or any affiliated entity
seeks approval of the Township for a transfer, assignment or change
of control, franchisee shall be responsible for any and all reasonable
attorneys' and/or consulting fees incurred by the Township up
to $1,000 relative to the transfer, assignment, or change of control.
B.
Renewal. The Township and franchisee agree that any proceedings or
activities that relate to the renewal of franchisee's franchise
shall be governed by applicable federal, state and local law.
A.
Force majeure. If for any reason of force majeure or labor strike
interruption, franchisee is unable in whole or in part to carry out
its obligations hereunder, franchisee shall not be deemed in violation
of this agreement during the continuance of such inability. The term
"force majeure" as used herein shall have the following meaning: acts
of God; acts of public enemies, including acts of terrorism, orders
of any kind of the government of the United States of America or of
the Commonwealth of Pennsylvania or any of their departments, agencies,
political subdivisions, or officials, or any civil or military, authority,
insurrections, riots, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, volcanic activity, storms, floods, washouts, droughts,
explosions, and partial or entire failure of utilities.
B.
Removal of system.
(1)
Subject to the requirements of applicable federal and/or state
law, upon lawful termination or revocation of this agreement or of
any renewal hereof by passage of time or otherwise, franchisee shall
remove its supporting structures, poles, transmissions and distribution
systems and other appurtenances from the streets, ways, lanes, alleys,
parkways, bridges, highways, and other public and private places in,
over, under, or along which they are installed and shall restore the
areas to their original condition. If such removal is not completed
within six months of such lawful termination or revocation, the Township
or property owner may deem any property not removed as having been
abandoned and the Township may remove it at franchisee's cost.
(2)
Subject to the requirements of applicable federal and/or state
law, if during the term of the Agreement, if franchisee decides to
abandon or no longer use all or part of its cable system, it shall
give the Township written notice of its intent at least 90 days prior
to such decision, which notice shall describe the property and its
location. The Township shall have the right to either require franchisee
to remove the property, remove the property itself and charge franchisee
with the costs related thereto, or transfer ownership of the property
to the Township's designee provided fair market value is paid
to franchisee.
(3)
Notwithstanding the above, Blue Ridge shall not be required
to remove its cable system, or to relocate the cable system, or to
sell the cable system, or any portion thereof as a result of revocation,
denial of renewal, or any other lawful action to forbid or disallow
Blue Ridge from providing cable services, if the cable system is actively
being used to facilitate any other services not governed by the Cable
Act.
C.
Notices.
(1)
Every notice or payment to be served upon or made to the Township
shall be sent to:
|
Alice Rehrig, Township Manager
Township of Lehigh
1069 Municipal Drive
Walnutport, PA 18088
With a copy to: Township Solicitor
|
(2)
The Township may specify any change of address in writing to
franchisee.
(3)
Every notice to be served upon franchisee shall be sent to:
|
ATTN: President
Blue Ridge Communications
P.O. Box 215
613 3rd Street
Palmerton, PA 18071
|
(4)
Franchisee may specify any changes of address in writing to
the Township.
(5)
Each delivery to franchisee or the Township shall be equivalent
to direct personal notice, direction or order, and shall be deemed
to have been given at the time of receipt.
D.
Equal employment opportunity. Franchisee is an equal opportunity
employer and shall comply with all applicable federal and state laws
and regulations regarding equal opportunity employment.
E.
Captions. The captions for sections throughout this agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this agreement. Such captions shall not affect the
meaning or interpretation of this agreement.
F.
Governing law. This agreement shall be governed and construed by
and in accordance with the laws of the Commonwealth of Pennsylvania.
If suit is brought by a party to this agreement, the parties agree
that trial of such action shall be vested exclusively in the state
courts of Pennsylvania, County of Northampton, or in the United States
District Court for the Eastern District of Pennsylvania.
G.
Entire agreement. This written instrument contains the entire agreement
between the parties, supersedes all prior agreements or proposals
except as specifically incorporated herein, and cannot be changed
without written amendment approved by both the Township and franchisee.
H.
Severability. If any section, provision or clause of this agreement
is held by a court of competent jurisdiction to be illegal, 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.
I.
Change of law. In the event there is a change in a federal or state
statute or regulation applicable to the cable system or to this agreement,
the Township or franchisee may notify the other party of its desire
to amend this agreement in order to comply with the change in statute
or regulation. The Township and franchisee may amend this agreement
to comply with such change in statute or regulation provided such
amendment is approved by the Township and franchisee.
J.
Applicability of agreement. All of the provisions in this agreement
shall bind franchisee, the Township and their respective successors
and assigns. This agreement is authorized by Ordinance No. 2018-8
dated January 22, 2019, of the Township.
The following terms used in this franchise shall have the following
meanings:
Any corporation, partnership or other business entity that
owns, controls, is owned or controlled by, or is under common ownership
or control with franchisee.
That service tier which shall include at least the retransmission
of local broadcast television signals consistent with federal law,
qualified local noncommercial educational television signals, PEG
channel, if any.
Over-the-air transmission by a television or radio station.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service. Cable service also includes internet access
provided such service is deemed to be a cable service by the FCC or
a court of competent jurisdiction.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the Township,
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 public
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Cable Communications
Act, except that such facility shall be considered a cable system
(other than for purposes of Section 521 of the Cable Communications
Act) to the extent that facility is used in the transmission of video
programming directly to subscribers unless the extent of that use
is solely to provide interactive on-demand services;
An open video system that complies with Section 653 of the Cable
Communications Act; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
Any written communication by a subscriber expressing dissatisfaction
with any aspect of franchisee's business or the operation of
its cable system.
The coaxial or fiber optic or other cable that connects a
home or building to the cable system.
Federal Communications Commission.
All revenue received directly or indirectly by franchisee or
its affiliated entities from any source whatsoever arising from, attributable
to, or in any way derived from the operation of franchisee's
cable system in the Township to provide cable services. Gross revenues
shall include, but are not limited to, the following:
Basic service fees;
Fees charged to subscribers for any service tier other than
basic service;
Fees charged for premium services;
Fees charged to subscribers for any optional, per-channel or
per-program services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for video or audio programming;
Fees for downgrading any level of cable service programming;
Fees for "trouble calls";
Fees for leasing of channels;
Charges based on the sale or lease of any portion of the cable
system or fiber capacity, if specifically authorized by federal law;
Rental or sales of any and all equipment, including converters
and remote control devices;
Studio rental, production equipment and personnel fees;
Any and all advertising revenues pro rata to the Township;
(Reserved)
Sale or rental of subscriber lists;
Revenues or commissions from home shopping channels;
Revenue from interactive television services;
Fees for any and all music services where such services are
available to subscribers as an optional service and/or on a subscription
basis;
Fees for video-on-demand;
(Reserved)
Late payment fees;
Franchise fees (excepting the 5% franchise fee required to be
paid pursuant to this agreement).
Notwithstanding the foregoing, nothing herein shall be interpreted
to enlarge the Township's right to collect franchise fees beyond
the authority granted to the Township by the Cable Act; and the Township
acknowledges that revenues from advertising and home shopping channels
are received based on zip codes that do not conform to Township boundaries.
For the purpose of calculating franchise fees, these revenues will
be prorated among franchise authorities based on the number of subscribers
within each.
Gross revenues shall not include bad debts; interest income;
revenue of the franchisee or any affiliated entity from the facilities
of a common carrier, which is subject to Title 11 of the Communications
Act, as amended; or any taxes on services furnished by franchisee
and imposed directly upon any subscriber or user by the Township,
state, federal or other governmental unit.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Business conditions within franchisee's service department
which are within the control of franchisee. Those conditions that
are not within the control of franchisee include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone
network outages and severe or unusual weather conditions.
An interior receptacle that connects a television set to
the cable system.
Any video, audio, text or data coded signal carried over
the cable system.
The loss of picture, text, data or sound on one or more channels.
A person or entity who contracts with franchisee for, and
lawfully receives, the video signals and cable services distributed
by the cable system.
If any section, clause, provision, or portion of this ordinance
or regulation incorporated herein shall be held to be invalid or unconstitutional
by any court of competent jurisdiction, such decision shall not affect
any other section, clause, provision, or portion of this ordinance
or regulation.
All ordinances and parts of ordinances inconsistent herewith
be and the same are hereby repealed.
