[HISTORY: Adopted by the Board of Supervisors of West Nantmeal
Township 2-11-1991 by Ord. No.
37. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "West Nantmeal
Township Community Antenna Television Ordinance."
When used in this chapter, unless the context otherwise requires,
the following terms and their derivatives shall have the meanings
herein given (and when not inconsistent with the context, words used
in the present tense include the future tense, words in the plural
number include the singular, and words in the singular number include
the plural):
An entity which owns or controls, is owned or controlled
by, or is under common ownership with grantee.
A mutually agreed-to calendar date which will serve as that
date on which future basic rates may be adjusted according to an annual
cycle.
The tier of service regularly provided to all subscribers
that includes the retransmission of all must-carry broadcast television
signals as defined in rules established by the Federal Communications
Commission (FCC) or, in the absence of at least three must-carry signals,
any unaltered broadcast television signals and the public, educational
and governmental channels, as required by the franchising authority
pursuant to Title VI of the Cable Communications Policy Act, but excluding
premium service transmission for which the grantee must pay a fee
to the supplier of the premium service.
All remuneration received directly by the grantee from subscribers
in payment for regularly furnished basic cable television service,
but shall not include any taxes on services furnished by the grantee
imposed on any subscriber or user by any government, governmental
unit, political subdivision, agency or instrumentality, and collected
by the grantee.
Board of Supervisors of West Nantmeal Township.
That body of federal law which was enacted on October 30,
1984, and having an effective date of December 29, 1984, or as hereafter
amended.
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, transmitting,
amplifying and distributing audio, video and other forms of electronic
or electrical signals, located in the Township.
The initial authorization, or renewal thereof, issued by
the Township, whether such authorization is designated as a "franchise,"
"permit," "license," "resolution," "contract," "certificate," or otherwise,
which authorizes construction and operation of the cable system for
the purpose of offering cable service or other service to subscribers.
That area within the corporation limits of the Township as
now or hereafter constituted.
The grantee (franchise holder) of rights granted by the Township
under this chapter; a franchisee.
The monthly cable service revenues actually received by the
grantee from subscribers of the cable system, including revenues for
basic cable service and revenues for premium cable service, including,
but not limited to, HBO, Cinemax, Showtime, Disney and similar programming.
Such phrase shall not include pay-per-view (PPV) revenues, but shall
not include revenues received from any advertising carried on the
cable services which are imposed directly or indirectly on any subscriber
thereof by any governmental unit or agency and which are collected
by the grantee on behalf of such governmental unit or agency.
Special one-time events, made available from time to time,
to only those cable television subscribers who prearrange to pay a
special one-time fee for such individual event.
An individual, partnership, association, joint-stock company,
trust corporation, or other legal entity.
Any cable service including, but not limited to, HBO, Cinemax,
Showtime, Disney and similar programming, but not including basic
cable.
All property owned, installed or used by the grantee in the
conduct of a cable television system in the Township.
The surface of and the space above and below, and within
the right-of-way of, any public street, highway, freeway, bridge,
land path, alley, court, boulevard, sidewalk, parkway, way, lane,
public way, drive, circle, or other public right-of-way, including,
but not limited to, public utility easements, dedicated utility strips
or rights-of-way, and any temporary or permanent fixtures or improvements
located thereon, now or hereafter held, owned or dedicated to the
Township.
The latest in cable television technology which may be practically
applied within the Township.
A person or user of the cable system who lawfully receives
cable service or other service therefrom with grantee's expressed
permission.
The Township of West Nantmeal, also called the "franchising
authority."
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
Upon application duly made, the Township may grant to a designated
grantee, by a duly executed franchise agreement, the right and privilege
to engage in the business of operating and providing a cable television
system within the Township, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain and retain in, on,
over, under, upon, across and along any public way, and all extensions
thereof and additions thereto in the franchise area, such poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, pedestals,
amplifiers, and other necessary Township-owned or leased property.
Any such grant shall be solely for the purpose of transmission and
distribution of audio, digital and video impulses and television energy
in accordance with the laws and regulations of the United States of
America, of the Commonwealth of Pennsylvania, and of this Township.
The Township may promulgate a form for the making of any such application,
and ,in the event that such a form is promulgated, then application
shall be made only on such form. Any right granted pursuant to this
chapter shall be conditioned on the faithful performance and observance
of the conditions, regulations and reservations herein specified and
shall further be conditioned upon the prompt payment of the amounts
provided for herein.
The right of any grantee to the use and occupancy of the public
way shall not be exclusive in the grantee. The Township shall require
a franchise agreement of the grantee and of any other individual or
company engaging in the cable television business within any portion
of the Township. Further, any grantee shall have the right to adjust
current rates according to evaluation of those rates effected by any
other grantee operating a cable television franchise in the Township.
Such adjustments shall be accomplished through notification filed
with the Township Secretary and shall occur automatically on the date
established by the grantee.
A.
Rights granted to any grantee hereunder shall take effect and be
in full force from and after the date upon which each application
is approved by the Township. The rights granted hereunder shall continue
in full force and effect for an initial period of not less than 10
years from the date of application approval, and each grantee whose
application is approved shall have the right to renew the rights granted
hereunder for an additional term of five years and, thereafter, in
additional five-year increments, from and after the expiration date
of any initial or renewal period. The right to renew for each additional
renewal period shall be exercised by the grantee by giving written
notice to the Township of the grantee's election to exercise its renewal
option, which notice shall be given not less than six months, nor
more than one year, prior to the expiration of the initial term granted
hereunder. Such notice shall be either personally served or mailed,
certified or registered mail, return receipt requested, to the Township
at its administrative offices.
B.
Prior to the issuance or renewal of any franchise to operate a cable
television system within the Township, the Board shall conduct a public
hearing, to which the grantee or proposed grantee shall be a necessary
party, subject to 10 days prior public notice advertised one time
in a newspaper of general circulation in the Township. The following
factors shall be considered in the issuance or renewal of any franchise,
and the grantee or the proposed grantee shall have the burden to demonstrate
compliance with each criteria:
(1)
Whether the grantee has or can substantially comply with the material
terms of the proposed franchise agreement, this chapter, and all other
applicable law;
(2)
Whether the quality of the grantee's service has or will be reasonable
in light of community needs;
(3)
Whether the grantee has the financial, legal, and technical ability
to provide the services, facilities and equipment proposed; and
(4)
Whether the grantee's proposal is reasonable to meet the current
and future cable-related community needs and interests, including
the cost of meeting them.
C.
Any proceedings undertaken by the Township that relate to issuance
or renewal of any franchise shall be governed by and comply with the
provisions of Section 626 of the Cable Communications Policy Act of
1984, unless the procedures and substantive protection set forth therein
shall be deemed to be preempted or superseded by the provisions of
any subsequent provisions of federal or Commonwealth law, which shall
then apply to any such proceeding.
D.
In addition to the procedures set forth in Section 626(a), the Township shall notify the existing or proposed grantee of its preliminary assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of grantee under the then-current franchise agreement, if any. Such notification shall be made prior to the time that the four-month period referred to in Subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary herein, at any time during the term of any then-current franchise agreement under which the grantee is operating, subject to affording the public appropriate notice and opportunity to comment, the Township, in its discretion, may agree to undertake and finalize negotiations with grantee regarding renewal of the then-current franchise agreement, and the Township may grant a renewal thereof, in its discretion.
A.
To the extent possible, all franchise facilities shall be attached
to existing poles. To the extent that existing poles are insufficient
for the operation of a franchise, or if the grantee is unable to negotiate
agreements reasonably satisfactory to grantee providing for use of
existing poles, grantee shall have the right to erect and maintain
its own poles as necessary for the construction and maintenance of
its television distribution system, subject to the prior written approval
of the location of such poles by the Township Engineer; provided,
however, that the approval of the Township Engineer shall not be granted
for the installation of such poles when, in his opinion, the installation
of such new transmission facilities underground is feasible, or otherwise
necessary, considering engineering criteria only.
B.
Grantee shall have the right, authority, power and privilege to attach
any of its system facilities to any existing or future poles, towers
or other electrical facilities owned by the Township in a manner which
will not interfere with the use of such poles, towers and other electrical
facilities by the Township, provided that no such attachment shall
take place unless 10 days' prior written notice has been given by
grantee to, and received by, the Township and the Township has failed
to object to such attachment within that time.
C.
Grantee shall pay to the Township an annual fee for each pole utilized
by grantee owned by the Township, which fee shall not be less than
$2 per pole. If the grantee shall negotiate a contract with the Philadelphia
Electric Company or the Bell Telephone Company of Pennsylvania, or
other public utility for the use of their poles for a fee per pole
per year, then the annual fee payable hereunder shall be the same
as the fee payable pursuant to such negotiated contracts, but not
less than the amount aforesaid. If such utility fees are different,
the annual fee per pole payable to the Township shall be the higher
of the negotiated utility contract fees, but not less than the aforesaid
minimum fee.
D.
All holders of public licenses and franchises within the corporate
limits of the Township shall cooperate with every grantee hereunder
to allow usage of existing poles and pole line facilities wherever
possible and wherever such usage does not interfere with the normal
operation of said pole and pole line, so that the number of new or
additional poles constructed in the Township shall be minimized.
E.
Each grantee shall extend to the Township, free of any expense, joint
use of any and all poles owned by any grantee for any proper municipal
purpose insofar as may be accomplished without interference with the
use and enjoyment of the grantee's own wires and fixtures. Township
shall hold each grantee harmless from any and all action, causes of
action or damage caused by any action of the Township in placing wires
or appurtenances upon the poles of the grantee.
A.
All transmission and distribution structures, poles, lines, and equipment
installed or erected by the grantee within the franchise area shall
be so located as to cause minimum interference with the proper use
of streets and with the rights and reasonable convenience of property
owners who adjoin any of said streets, and shall be subject to prior
written approval of the Township Engineer, who shall determine pole
set\back from the cartway and all other matters related to such location
and installation. The cable television system shall be constructed
and operated in compliance with applicable governmental construction
and electrical codes.
B.
In case of disturbance of any street or paved area, the grantee shall,
at its expense and in a manner approved by the Township Engineer,
replace and restore such street or paved area in as good condition
as theretofore.
C.
The grantee shall, at its expense, protect, support, temporarily
disconnect, remove from or relocate in the same public way or public
place, any property of the grantee when lawfully required by the Township
by reason of traffic conditions, public safety, street grade, installation
of sewers, drains, gas or water pipes, or any other type of structures
or improvements by or required by the Township, but the grantee shall,
in all cases, have the right of abandonment of its property, subject
to Township ordinances.
D.
Should the Township seek to alter, improve, redevelop or refurbish
any street(s) or area presently served by the existing cable television
system, the Township shall notify the grantee of such plans. This
notice shall be issued concurrent with notification of public utility
companies, and grantee shall be invited to all preconstruction conferences.
E.
Should the Township make application to any public agency or other
funding source which provides monetary reimbursement for relocation
or replacement of existing transmission pipes, power lines or communications
facilities, etc., such application shall include a request made on
behalf of the grantee to cover costs of relocation or replacement
of cable television system. Should said reimbursement request to fully
compensate the grantee be denied, and should the Township and grantee
be unable to agree on an acceptable method and amount of reimbursement,
then the grantee shall be released of any obligation to provide cable
service to the affected area. The grantee and the Township may, by
mutual agreement, arrange to continue to serve the affected area and
achieve appropriate reimbursement by deducting a negotiated, fixed
amount from the franchise fee paid to the Township. The fixed amount
shall be specified and described in an itemized statement of charges
which shall be submitted by grantee to the Township for approval.
The Township shall not expend funds as prepayment for relocation and
shall only be required to expend actual, available Township funds
if, in Township's discretion, total reimbursement, mutually agreed
to, cannot be accomplished through quarterly deductions from the franchise
fee due the Township.
F.
Whenever it shall be necessary
for any grantee to raise, lower or temporarily remove its lines or
facilities to permit the moving of any machinery or equipment or any
building or other structure, the grantee shall accomplish the same
upon the request of any person lawfully entitled to move same. The
actual expense thereof shall be paid by the person requesting the
same and the grantee shall have the right to require payment in advance
of the reasonably estimated costs to be incurred; provided, however,
that, if any such raising, lowering or temporary removal shall be
necessary for Township purposes and shall be done at the request of
the Township, then it shall be accomplished by the grantee at no charge
to the Township. The grantee shall be given not less than 10 business
days' advance notice to arrange for such temporary wire changes.
G.
To the extent that the Township shall have the authority to grant
the same, and after approval of the property owner, subject to prior
written approval of the Township Engineer, the grantee shall have
the authority, at its expense, to trim trees overhanging any streets
in the franchise area so as to prevent branches from coming in contact
with the grantee's wires and cables, except that, at the option of
the Township, such trimming may be done by it or under its supervision
and direction at the grantee's expense.
H.
Subject to any applicable commonwealth or federal regulations or
tariffs, the Township shall have the right to make additional use,
for any public purpose, of any poles or conduits controlled or maintained
exclusively by or for the grantee in any street, provided:
(1)
Such use by the Township does not interfere with the use by the grantee.
(2)
The Township holds the grantee harmless against and from all claims,
demands, causes of actions, suits, actions, proceedings, damages,
costs or liabilities of every kind and nature whatsoever arising out
of such use of said poles and conduits.
(3)
This hold harmless provision shall include, but not be limited to,
reasonable attorney's fees and costs and, at grantee's sole discretion,
the Township may be required either to pay a reasonable rental fee
or otherwise reasonably compensate grantee for use of such poles,
conduits, or equipment; provided, however, that grantee agrees that
such compensation or charge shall not exceed those paid by it to public
utilities pursuant to the applicable pole attachment agreement, or
other authorization, relating to the service area.
A.
Each grantee whose application is approved pursuant to this chapter
shall construct an all bands system capable of providing at least
30 channels of television reception and FM radio to the grantee's
subscribers, and installation and maintenance of equipment shall be
such that standard color signals shall be transmitted to the subscribers.
B.
Each grantee shall furnish, upon request, free of use charge and installation costs, subject, however, to the limitation contained in § 67-10C of this chapter, at least one service distribution connection to each school, fire station, police station, Township administrative building, and public library located within the Township and along any of the grantee's transmission line routes, within normal installation guidelines, and such grantee shall make available for public use in any of those facilities at least one channel up to 35-channel capability and at least two channels up to 64-channel capability, or as otherwise required by the Cable Communications Policy Act of 1984, as the same may be from time to time amended.
C.
In the case of any emergency or disaster, the grantee shall, upon
the Township's request, make available its facilities to the Township
for emergency use during the emergency or disaster period.
A.
The grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries
or nuisances to the public. All such work shall be performed in substantial
compliance with applicable FCC or other federal, commonwealth and
local regulations.
B.
Grantee shall keep all structures and all lines, equipment and connections
in, over, under and upon all public ways within the franchise area
in a safe and suitable condition and in good order and repair.
A.
The grantee is hereby authorized to extend the system within the
franchise area to the extent that such extension is or may become
technically and economically feasible.
B.
Provided, whenever the grantee shall have received written requests
for service from at least 15 subscribers within 400 cable meters (1,300
cable feet) of its aerial trunk cable, or from at least 25 subscribers
within 400 cable meters (1,300 cable feet) of its underground trunk
cable, it shall extend its system to such subscribers solely for the
usual connection and service fees for all subscribers. The 400 meters
shall be measured in extension length of grantee's cable required
for service located within the public way or easement and shall not
include length of necessary drop cable to the subscriber's home or
premises.
C.
No person in the grantee's franchise area shall be arbitrarily refused
service; but, in recognition of the capital costs involved in unusual
circumstances, including, without limitation, instances when the distance
from distribution cable to connection of service to subscribers is
more than 45 meters (150 cable feet) or when a subscriber density
exists less than the density as specified hereinabove, service may
be made available on the basis of costs of materials, labor and easements,
in order to prevent inequitable burdens on cable subscribers in more
densely populated areas.
D.
For all residential structures hereinafter erected which are to be
serviced by underground utilities, the developer of the subdivision
or development may acquire cable television service for such development
under an agreement negotiated between the grantee and such developer.
Grantee will, with due diligence and in a businesslike manner, seek
to finalize satisfactory cable television service agreements with
developers who do future construction within the Township. However,
absent such agreement(s), the grantee shall have no obligation to
serve such areas. Circumstances shall be timely reported to the Township.
(1)
In addition, the grantee may provide plans and specifications to
the developer in accordance with any such agreement between the grantee
and the developer, but such plans and specifications, if agreed to
by the grantee and the developer, must then be submitted to the Township
who shall have the right of review, and Township approval of the plans
and specifications shall be obtained before installation. Unreasonable
delay in Township approval or untimely Township approval caused by
Township failure or inability to act shall also free the grantee of
any obligation to provide service. Timeliness is a response time of
60 days after receipt by Township.
(2)
In those areas of the franchise area where all of the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, the
grantee likewise shall construct, operate and maintain all of its
transmission and distribution facilities underground, provided that
such facilities are actually capable of receiving grantee's cable
and other equipment without technical degradation of the cable television
system's signal quality. In those areas of the franchise area where
the transmission or distribution facilities of the respective public
utilities providing telephone communications and electric services
are both aerial and underground, grantee shall have the sole discretion
to construct, operate and maintain all of its transmission and distribution
facilities, or any part thereof, aerially or underground. Nothing
contained in this section shall require grantee to construct, operate
and maintain underground any ground-mounted appurtenances, such as
subscriber taps, line extenders, system passive devices (splitters,
directional couplers), amplifiers, power supplies, pedestals, or other
related equipment. Notwithstanding anything to the contrary contained
in this section, in the event that all of the transmission or distribution
facilities of the respective public utilities providing telephone
communications and electric services are placed underground after
the effective date of this chapter, grantee shall only be required
to construct, operate and maintain all of its transmission and distribution
facilities underground if it is given reasonable notice and access
to the public utilities' facilities at the time that such are placed
underground.
A.
The grantee shall operate and maintain the cable television system
in full compliance with the standards established and mandated by
the Federal Communications Commission (FCC).
B.
The Township may perform technical tests of the cable television
system during reasonable times and in a manner which does not unreasonably
interfere with the normal business operations of the grantee or the
cable television system in order to determine whether or not the grantee
is in compliance with this chapter, and applicable commonwealth or
federal laws. Except in emergency circumstances, such tests may be
undertaken only after giving grantee reasonable notice thereof, not
to be less than five business days, and providing a representative
of grantee an opportunity to be present during such tests. In the
event that such testing demonstrates that the grantee has substantially
failed to comply with a material requirement hereof, the reasonable
costs of such tests shall be borne by the grantee. Except in emergency
circumstances, the Township agrees that such testing shall be undertaken
no more than two times a year in the aggregate, and that the results
thereof shall be made available to the grantee upon grantee's request.
A.
Each grantee shall, at all times, be subject to the provisions of
this chapter and regulations adopted by the Township in furtherance
hereof, and the applicable provisions of all laws of the United States
and the Commonwealth of Pennsylvania. Provided, however, nothing herein
contained shall be deemed to render any grantee a public utility except
as may be otherwise provided by the laws of the commonwealth.
B.
Whenever it is necessary to shut off or interrupt service for the
purpose of making repairs, installations or adjustments, the grantee
shall do so at such time or times as will cause the least amount of
inconvenience to its subscribers, consistent with the needs and requirements
of the grantee.
C.
The grantee shall maintain a local business office and a local telephone
service, which shall be toll free to the caller for calls originating
from within West Nantmeal Township, for the purpose of receiving inquiries
and complaints from the grantee's subscribers and from the general
public. Each grantee shall provide sufficient maintenance personnel
to respond to routine service calls within 24 hours during the period
from 8:00 a.m. through 7:00 p.m., five days per week, except in the
case of major outages due to storms, civil unrest or acts of God.
Each grantee shall maintain a telephone answering service ,and shall
respond to routine service calls generated therefrom within 24 hours
of commencement of business the day following the call. Grantee shall
maintain a written record of all such calls, which shall be available
for inspection by the Township Codes Enforcement Officer upon 48 hours'
prior oral or written request.
The grantee shall maintain on file with the Township Secretary
a schedule setting forth all rates and charges to be made to subscribers
for basic cable television service, including connection and service
charges. Notice of changes in rates and charges shall be filed with
the Township Secretary. The grantee shall submit such notice of rate
changes at least 30 days prior to the effective date of the adjusted
rates. The Township shall, at its option, have the opportunity to
meet with the grantee to discuss rate adjustments, provided such meetings
occur at least 30 days prior to the effective date of said adjustments.
Normal rate adjustments will not occur more frequently than on an
annual basis with the anniversary date relative to the adjustments
understood to be the beginning and the end of this annual cycle. Intervening
rate adjustments which become necessary shall be permitted if increased
operating costs are caused by increases in copyright payments, utility
pole or conduit rental, programming charges or franchise fee. Other
intervening rate adjustments shall occur through authorization in
law or through the action of an agency of government or court of competent
jurisdiction.
A.
The grantee shall pay the Township, in quarterly payments, on or
before the last day of March, April, July, and November in each year,
a franchise fee equal to 5% of the grantee's gross subscriber revenues
received for cable television operations in the Township for the preceding
calendar quarter, less any subscription fee paid by the grantee to
grantee's supplier of a premium cable service, but no other fee, tax,
charge or consideration. By April 15 of each year, the grantee shall
provide an annual summary report showing these basic annual subscription
revenues received during the preceding calendar year, together with
a certified public accountant audited financial statement containing
at the minimum a profit and loss statement and a balance sheet, and
shall pay any unpaid franchise fee then due for such preceding year.
B.
Each grantee shall keep records of account showing the date and amount
of all payments received from subscribers. The Township Secretary
or other agent authorized by the Board shall have the right, at the
Township's expense, to inspect and audit the grantee's records of
basic subscriber revenues at any reasonable time.
C.
Nothing herein contained shall be construed as requiring any grantee
to pay to the Township any portion of the revenue derived from the
sale of its service to subscribers residing outside the corporate
limits of the Township; provided, however, that upon annexation to
the Township of any territory not now within its corporate limits,
the portion of the grantee's facilities that may be located within
such annexed territory shall thereafter be subject to all of the terms
of this chapter.
A.
The grantee shall at all times protect and hold the Township harmless
from all claims, actions, suits, liabilities, judgments, losses, expenses
or damages of every kind and description, including investigation
costs, court costs, and reasonable attorney's fees, which may accrue
to or be suffered or claimed by any person or persons arising out
of the negligence or alleged contractual dispute of the grantee in
the ownership, construction, repair, replacement, maintenance and
operations of said cable television system and by reason of any license,
copyright, property right or patent of any article or system used
in the construction or use of said system, provided the Township gives
the grantee prompt notice of any such claims, actions and suits, etc.,
without limitation, in writing. The grantee shall maintain in full
force and effect during the life of any franchise public liability
and property damage insurance for an amount of at least $500,000 single
limit liability from the time of commencement of construction of the
cable television system. In addition, the grantee shall carry workers'
compensation coverage for its employees. Evidence of all such insurance
coverage shall be provided to the Township within 10 business days
of its effective date of coverage.
B.
Any insurance company providing coverage under the provisions of
this section must be licensed to do business in the Commonwealth of
Pennsylvania. All such insurance may contain reasonable deductible
provisions not to exceed $1,000 for any type of coverage. All investigation
of claims made by any person against the Township arising out of any
use or misuse of privileges granted to the grantee hereunder shall
be made by, or at the expense of, the grantee or its insurer. The
grantee may bring its obligations to carry any insurance required
hereby within the coverage of any so-called blanket policy or policies
of insurance now or hereafter carried, by appropriate amendment, endorsement
or otherwise; provided, however, the interest of the Township shall
be as fully protected thereby as if the grantee had obtained individual
policies of insurance.
C.
Grantee shall not be initially required to obtain or maintain bonds
or other surety as a condition of being awarded the franchise or continuing
its existence. Should a bond and other surety be required to guarantee
compliance with or performance of this chapter or a franchise agreement
executed hereunder, it shall be only in such amounts and during such
times as there is a reasonably demonstrated need therefor. The Township
agrees that in no event, however, shall it require a bond or other
related surety in an aggregate amount greater than $10,000 conditioned
upon the substantial performance of the material terms, covenants,
and conditions of the franchise. In the event that one is required
in the future, the Township agrees to give grantee at least 30 days'
prior notice thereof stating the exact reason for the requirement.
Such reasons must demonstrate a change in the grantee's legal, financial
or technical qualifications which would materially prohibit or impair
its ability to comply with the terms of the franchise or afford compliance
therewith.
A.
Any formal inquiry, proceeding, or other action taken or proposed
to be taken by the Township with respect to the operation of any existing
or proposed cable television system franchise shall be subject to
30 days' prior written notice to the franchise holder, whose right
to procedural due process shall be protected at a public hearing of
the Board.
B.
The notice required by this section shall state clearly the action
or proposed action to be taken, the time provided for a response and
the person or persons in authority to whom such response shall be
addressed, and such other procedures as may be specified by the Township.
Any such notice shall include the date, time and place of the scheduled
hearing on the proposed action, whether public participation will
be allowed, and the procedures by which such participation may be
obtained. Any grantee who is the holder or proposed holder of a franchise
which is the subject of the notice shall be a necessary party to any
such hearing.
C.
No hearing shall be held except upon 10 days' prior public notice
published at least one time in a newspaper generally circulating in
the Township. Any existing subscriber of the subject franchise holder
or any person residing within the franchise area of a proposed grantee
may become a party to the hearing by entering a formal written appearance
with the Board prior to the hearing's commencement.
The Township shall have the right to terminate any cable television
franchise in the event of the failure of the franchise holder (grantee)
to perform any of the material provisions of this chapter, or in the
event of any breach of the covenants and conditions contained herein,
or for breach of the franchise agreement. In considering termination
for just cause, initiated by the Township, the following provisions
shall apply:
A.
Notice of violation. In the event that the Township alleges that
the grantee has not complied with the terms of this chapter or the
franchise agreement, it shall notify the grantee of the exact nature
of the alleged noncompliance.
B.
Grantee's right to cure or respond. Grantee shall have 30 days from
receipt of the notice described in this section to i) respond to the
Township, contesting the allegation of noncompliance, or ii) to cure
such default or noncompliance, or, in the event that, by the nature
of the default, it cannot be cured within a period of 30 days, to
specifically describe and initiate reasonable steps to remedy such
default, together with the projected date of completion. The Township
may reject the grantee's proposed remedy and time for performance
in the event the same is not reasonable.
C.
Public hearing. In the event that grantee fails to respond to the
Township's notice, or in the event that the alleged default is not
remedied within 30 days after the Township's initial notification
(or any extension agreed to by the Township for performance), the
Township shall schedule a public hearing to investigate the grantee's
default. Ten days' prior notice of the hearing shall be given to the
grantee, and it shall be conducted in accordance with the Local Agency
Law.[1]
[1]
Editor's Note: See 2 Pa.C.S.A. § 551 et seq.
D.
Enforcement. Subject to applicable federal and commonwealth law,
in the event the Township, after hearing, determines that the grantee
is in default of its franchise agreement or any of the provisions
of this chapter, the Township may:
(1)
Foreclose on all or any part of any security provided under this
chapter, if any, including, without limitation, any bonds or other
surety; provided, however, such foreclosure shall only be in such
a manner and in such amount as the Township reasonably determines
is necessary to remedy the default;
(2)
Commence an action for equitable relief, monetary damages or both;
(3)
Revoke the franchise agreement and terminate the grantee's right
to operate a cable television system within the Township; or
(4)
Seek specific performance of any provision of the franchise agreement,
plus damages, if applicable.
E.
The grantee shall not be relieved of any of its obligations to comply
promptly with any provisions of this chapter or the franchise agreement
by reason of any failure of the Township to enforce prompt compliance.
The Township's waiver of any grantee's noncompliance or default, at
any time, shall not act as a waiver of any future default; provided,
however, grantee shall not be held in default or noncompliance, nor
suffer any enforcement or penalty relating thereto, where such is
caused by strikes, acts of God, power outages, or other events reasonably
beyond its ability to control.
F.
Upon expiration of its franchise, should the grantee not have acquired
an extension or renewal thereof and accepted the same, it may have
and it is hereby granted the right to enter upon the public ways or
other Township property for the purpose of removing therefrom any
or all of its property, subject to the requirement that it restore
any disturbed areas to the condition immediately preexisting such
removal. As a condition precedent thereto, the grantee shall compute
and pay to the Township any and all sums then due and owing, computed
as of the effective date of the franchise termination. All final payments
shall be due within 45 days of the termination date.
A.
The grantee shall not sell or transfer its plant or cable television
system to another, other than an affiliate, nor transfer any rights
acquired under this chapter or specified in the franchise agreement
to another without the Board's prior written approval, following hearing.
No sale or transfer of the grantee's assets used in the performance
of this franchise shall be effective until the vendee, assignee or
lessee has filed in the office of the Township Secretary an instrument
duly executed reciting the fact of such sale, assignment of lease,
accepting the terms of the franchise agreement and agreeing to perform
all the terms and conditions thereof. The Board's approval shall not
be unreasonably withheld and neither this section nor other sections
of this chapter shall preclude the mortgaging, hypothecating, or assigning
of rights in the system, or the pledge of stock by the grantee for
the purpose of financing.
B.
If a renewal of grantee's franchise is denied, or if the grantee's
franchise is revoked upon cause shown, or in the event the grantee
surrenders its franchise for any reason, which shall be in its sole
discretion, grantee shall be given a reasonable opportunity to effectuate
a transfer of its cable television system to a qualified third party
at fair market value, determined on the basis of the cable television
system valued as an ongoing concern. Until consummation of such transfer,
the grantee shall continue to operate pursuant to the terms of its
prior franchise; however, in no event shall such authorization exceed
a period of time greater than six months from the effective date of
such revocation. If, at the end of that time, grantee is unsuccessful
in procuring a qualified transferee or assignee of its cable television
system, which is reasonably acceptable to the Township, grantee and
Township may avail themselves of any rights they may have pursuant
to federal or commonwealth law. Grantee's continued operation of its
cable television system during the six-month period shall not be deemed
to be a waiver, nor an extinguishment of, any rights of either the
Township or the grantee.
From and after the effective date of this chapter, it shall
be unlawful for any person to construct, install or maintain within
any public way in the Township, or on any other public or private
property within the Township, any equipment or facilities for the
transmission and distribution of audio, digital and video impulses,
including television and radio signals, through a cable television
system unless a franchise authorizing such use has first been obtained
from the Township, and unless and until such franchise is in full
force and effect. Should any person (a grantee is a person) violate
any of the terms, conditions or provisions of this chapter or of a
franchise agreement, or fail to comply with any lawful provision of
any Township ordinance regulating the use by any person of the public
ways, or if any grantee should violate any other lawful rule or regulation
applicable to it, whether Township, commonwealth or federal, and continue
to violate the same for a period of 30 days after notification, in
writing, to desist from such violation, the grantee may, at the Township's
option, be deemed to be in default of its franchise, and to have forfeited
and annulled all of its rights and privileges granted under this chapter
and the franchise agreement, and such franchise may be terminated
by the Township.
Any cable television franchise operating within the Township existing on the effective date of this chapter shall be subject to its provisions. Within 30 days following adoption of this chapter, the Township shall undertake proceedings pursuant to § 67-5 hereof to determine renewal of any existing franchise, which franchise shall then be subject to all of the terms and conditions of this chapter. Within 30 days of any such Board-authorized renewal, the Township and the grantee thereof shall enter into a revised cable television franchise agreement complying with the provisions of this chapter. Failure on the part of any existing franchise holder to comply with the renewal process shall subject it to the termination provisions of § 67-17 hereof.
