Borough of Green Lane, PA Grant of franchise

General requirement. Throughout the term of any franchise agreement, the franchise shall construct, operate, maintain and upgrade the cable system in order that it continuously conforms to the state of the art as follows: new services, associated equipment and facilities necessary to implement the state-of-the art upgrade shall be added to the system within there being provided in 40% of the franchisee's other markets or in 40% of all the systems of all cable system operators in Montgomery County, excluding experimental and pilot projects. Notwithstanding the foregoing, the franchisee shall not be required to provide any new services unless and until the Borough has approved a rate plan, where such approval is required, that will allow full recovery of costs expended in providing any such new services over the then-remaining franchise term.

State-of-the-art report. A franchisee shall provide to the Borough, in a form satisfactory to the Borough, at the Borough's request, no more often than once every year, a report setting forth the franchisee's review and assessment of the current state of the art of cable communications systems and its plans, if any, for upgrading the system to conform to the state of the art. The report shall address:

Technological advances making possible enhanced signal quality, publicly available equipment for the receipt of services or greater channel capacity and interactive systems;

A list of each jurisdiction in which new technologies have been or are being used and a description of the experience those jurisdictions have had with such new technologies;

An assessment of the costs associated with implementing such new technologies into the system;

(d)

A discussion of additional technological advances anticipated during the remainder of the term of the franchise, along with a projection of the costs and timetable for the franchisee offering such advances as part of or over the system.

§ 122-6 Use of public rights-of-way.

For the purpose of operating and maintaining a cable communications system in the Borough, a grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the Borough such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable communications systems; provided, however, that the grantee complies with all design, construction, safety, and performance provisions contained in this chapter, the franchise agreement, and other applicable laws, including, but not limited to, the Federal Technical Performance Standards, National Electrical Safety Code (current edition) and the power company and telephone company pole contract standards.

§ 122-7 Use of grantee facilities.

No poles shall be erected by a grantee without prior approval of the Borough with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the grantee shall be a vested right, and such poles shall be removed or modified by the grantee at its own expense whenever the Borough determines that the public convenience would be enhanced thereby. The grantee shall utilize existing poles and conduits, where possible. The Borough shall have the right, during the life of the franchise, to install and maintain free of charge upon the poles owned by the grantee any wire and pole fixtures that do not unreasonably interfere with the operations of the grantee.

§ 122-8 Franchise required.

No cable communications system shall be allowed to occupy or use the streets of the Borough or be allowed to operate without a franchise.

§ 122-9 Term of franchise.

The term of any franchise granted pursuant to this chapter shall be determined by agreement between the franchisee and the Borough, and shall be specified in the franchise agreement. No instance shall be less than five years nor more than 15 years in duration.

§ 122-10 Franchise nonexclusive.

Any franchise granted pursuant to this chapter shall be nonexclusive. The Borough specifically reserves the right to grant at any time such additional franchises for a cable communications system as it deems appropriate, and/or build, operate and own such cable communications system or systems as it deems appropriate.

§ 122-11 Transfer of ownership or control.

No franchise granted hereunder shall be transferred and no controlling interest shall be transferred without prior written consent of the Borough secured in accordance with the provisions of this section.

The franchisee shall promptly give Borough written notice of any proposed transfer. If the prospective transferee is a parent corporation of the current franchisee, a subsidiary or affiliate corporation of such a parent company, a subsidiary or affiliate corporation of the franchisee or any other firm or entity owned by the franchisee, then such transferee may operate the system without the prior approval of the Borough as to the financial and technical ability of the transferee so to do.

If a transfer of ownership is to occur between the franchisee and a person, firm, company, corporation or entity unrelated or not clearly so related to the franchisee, then the prospective transferee shall, no less than 30 days prior to the date of the proposed transfer, file with the Borough its petition for transfer. Such petition shall include, where applicable, an argument as to why the transfer contemplated would not involve a transfer of ownership or control. Such petition shall further include all that information which must be provided in an FCC Form 394.

Should it deem such as necessary to its determining whether it shall consent to a transfer, the Borough may inquire further, with the assistance of the prospective transferee, into the financial and technical qualifications of such transferee and the effect of the proposed transfer and sales price on rates being paid by subscribers to the system. The Borough shall act upon transfer petitions within 120 days of the presentation. If no municipal action is taken within the allotted time, consent to the transfer shall be deemed to have been given. Should the Borough determine, within 30 days of the presentation of a transfer petition, that additional information concerning the financial position or technical expertise of the transferee will be required, then the petition will be considered as having been filed only on receipt of all requested information. Failure to provide all information reasonably requested by the Borough as part of its inquiry shall be grounds for denial of the proposed transfer. If the Borough finds the results of its inquiry satisfactory, its consent to the transfer shall not be unreasonably withheld.

Any financial institution holding as security the franchise or its assets for the advancement of money for construction and/or operation of the franchise shall notify the Borough if such financial institution or its designees satisfactory to the Borough will take control and operate the cable television system. Said financial institution shall submit a plan for such operation that will ensure continued service and compliance with all franchise obligations during the period that the financial institution exercises control of the system. The financial institution shall not exercise control over the system for a period in excess of one year. The Borough, at its discretion, may extend the period of financial institution control. During a period of financial institution control, such entity shall have the right to transfer the franchise to another grantee. The petition process set forth above shall be followed in securing Borough consent to a franchise transfer from a financial institution. The consent of the Borough to such a transfer shall not be reasonably withheld.

No franchise agreement or Borough approval of a transfer of rights thereunder shall constitute a waiver of Borough rights in and to the streets, and any such agreement or transfer shall, by its terms, be subject to the terms of this chapter as they relate to the Borough's retention of such rights.

Approval of the Borough to a transfer of ownership and control shall be contingent upon the prospective transferee becoming a signatory to the franchise agreement.

§ 122-12 Franchise fees.

Findings for franchise fee requirement.

Because the Borough finds that:

The streets of the county, state, and Borough to be used by the grantee in the operation of its system within the boundaries of the franchise area are valuable public properties acquired and maintained by the county, state, and Borough at great expense to its taxpayers; and

The grant to the grantee to the said streets is a valuable property right without which the grantee would be required to invest substantial capital in right-of-way costs and acquisitions; and

The administration of this chapter and the franchise imposes upon the Borough additional regulatory responsibility and expense; and

(d)

The presence of the grantee and its facilities places additional burdens upon the Borough police and road departments and the volunteer fire company serving the area which is supported by the Borough;

A grantee of any franchise hereunder shall pay to the Borough a franchise fee in the amount as designated in the franchise agreement up to the maximum amount permitted under applicable federal, state, or local law. The present maximum franchise fee allowable is 5% of gross annual revenues.

In the event that any franchise fee payment or recomputed amount is not made on or before the dates specified in the franchise agreement, the grantee shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate of the Borough primary depository bank during the period that such unpaid amount is owed.

The franchise fee shall be payable as specified in the franchise agreement and shall commence as of the effective date of the franchises. The Borough shall be furnished at the time of each payment with a statement certified by the franchisee's representative, reflecting the total amounts of gross revenues for the period covered by the payment. The statement so issued shall break gross annual revenues into its several constituent sources, set forth the revenue derived from each source and the franchise fee attributable to each such source.

The Borough shall have the right to inspect the grantee's income records and the right to audit and to recompute any amounts determined to be payable under this chapter for a period of three years from the date of payment. Audits shall be at the expense of the Borough unless the audit discloses an underpayment in any one year of 5% or more, in which case the costs of the audit shall be borne by the grantee. Any additional amount due the Borough as a result of the audit shall be paid within 60 days following written notice to the grantee by the Borough, which notice shall include a copy of the audit report unless written notice of disagreement is filed by the grantee with the Borough within such time.

§ 122-13 Revocation and acceleration of expiration date.

Grounds for revocation or acceleration of expiration date. The Borough reserves the right to accelerate the expiration of the franchise term and/or revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under the chapter and the franchise agreement:

If the grantee shall default in the performance of any of the material obligations under this chapter or under such documents, contracts and other terms and provisions entered into by and between the Borough and the grantee.

If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or any performance bond or security fund as required.

(3)

If the grantee shall violate any lawful orders or rulings of any regulatory body having jurisdiction over the grantee relative to this chapter or the franchise.

(4)

If the grantee practices any fraud upon the Borough or any subscriber.

(5)

If it is determined that the grantee underpaid its franchise fee by 15% or more for any year.

(6)

If there is an occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or nonjudicial sale or all or any material part of the system, including, but not limited to, any of the following events:

Default under any loan or any financing arrangement material to the system or the obligations of the grantee under the franchise agreement;

Default under any contract material to the system or the obligations of the grantee under the franchise agreement; or

Termination of any lease or mortgage covering all or any material part of the system.

(7)

If in regards to any grantee:

A grantee shall suspend or discontinue its business, shall make an assignment for the benefit of creditors, shall fail to pay its debts generally as they become due, shall become insolvent (however, such an insolvency may be evidenced), shall be adjudicated insolvent, shall petition or apply to any tribunal for, or consent to, the appointment of, or taking possession by, a receiver, custodian, liquidator or trustee or similar official pursuant to state or local laws, ordinances or regulations of or for it or any substantial part of its property, or assets, including all or any part of this system; or

A writ or warrant of attachment, execution, distraint, levy, possession or any similar process shall be issued by any tribunal against all or any material part of a grantee's property or assets; or

Any creditor of a grantee petitions or applies to any tribunal for the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator, or similar official for the grantee or of any substantial parts of the assets of the grantee under the law of any jurisdiction, whether now or hereinafter in effect, and an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator, or similar official, or approving the petition in any such proceedings; or

(d)

Any order, judgment, or decree is entered in any proceedings against a grantee, decreeing the voluntary or involuntary dissolution of the grantee.

(8)

If there is a failure to restore service after 96 consecutive hours of total system outage in 40% or more of the system, except when approval of such interruption is obtained from the Borough or is excused pursuant to Subsection B.

(9)

If the grantee transfers the franchise or transfers control or a controlling interest in any system, franchise or in the grantee itself without the prior written consent of the Borough pursuant to the provisions set forth in § 122-11 of this chapter.

Effect of circumstances beyond control of grantee. Not withstanding any other provision of this chapter or the franchise agreement, a grantee shall not be liable for delay in performance of, or failure to perform in whole or in part its obligations pursuant to the franchise agreement or this chapter due to strike, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God, sabotage or other events, where a grantee has exercised all due care in the prevention thereof and to the extent that such causes or other events are beyond the control of the grantee and such causes or events are without the fault or negligence of the grantee. In the event that any such delay in performance or failure to perform affects only part of a company's capacity to perform, the company shall perform to the maximum extent that it is able to do so and shall take all steps within its power to correct such cause or causes. In correcting such cause or causes, a grantee shall take all reasonable steps to do so in as expeditious a manner as possible. A grantee shall notify the Borough, in writing, of the occurrence of an event covered by this subsection within 10 business days of the date upon which the grantee learns of its occurrence. Shortage or unavailability of equipment from suppliers shall be deemed to be beyond the control of the grantee in regards to any construction delays.

Pending litigation or any appeal to any regulatory body or court having jurisdiction over the grantee shall not excuse the grantee from the performance of its obligations under this chapter or the franchise agreement. Failure of the grantee to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section. The Borough shall comply with any related court orders.

Procedure prior to revocation.

The Borough shall make written demand that the franchise comply with any requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. Upon being notified, in writing, by certified mail, return receipt requested, of a demand to correct an alleged violation deemed a cause for revocation, there shall be a sixty-day period within which the franchisee may demonstrate to the satisfaction of the Borough that the alleged violation does not exist, or cure the alleged violation, or, if the violation cannot be corrected in 60 days, submit a plan satisfactory to the Borough for correction of the violation. If within 60 days of notice the franchisee has failed to demonstrate that an alleged violation does not exist or failed to cure that alleged violation or failed to submit a plan for correction of the alleged violation, then the Borough shall place its request for revocation upon the agenda of the regular meeting of its Council next succeeding the close of the sixty-day notice period. The Borough shall cause to be served upon the franchisee, at least seven days prior to the date of such Council meeting, written notice of this intent to request revocation, and the time and place of the meeting, notice of which shall be published by the Borough once, at least seven days before such meeting, in a newspaper of general circulation within the Borough.

Should the alleged violation constitute an immediate threat to the health and safety of the residents of the Borough or should it constitute a total system outage involving that portion of the system for that service period set forth in § 122-13A(8), then the sixty-day period during which franchisee might achieve compliance as provided for in § 122-13D(1) shall not apply and revocation shall be placed on the agenda of the next meeting of Council with the same seven-day notice requirements established therein. Such shall also be the procedure in those instances where the franchisee has failed to abide by the provisions of a previously approved plan of correction.

(3)

In any such administrative proceeding, both the franchisee and the Borough shall have the right to introduce evidence, to require production of evidence and to question witnesses in accordance with the standards of due process and fair hearing applicable to administrative hearings in the State of Pennsylvania. Either party may thereafter seek judicial review in a court of competent jurisdiction.

(4)

If such failure, refusal or neglect by the grantee was with just cause, as determined by the Borough Council, the Borough Council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

(5)

If the Borough Council shall determine such failure, refusal, or neglect by the grantee was without just cause, then the Borough Council may, by resolution, declare that the franchise of the grantee shall be revoked and the performance bond forfeited.

Disposition of facilities. In the event a franchise expires, is revoked or otherwise terminated, the Borough may, in its sole discretion, do any of the following:

Order the removal of the system facilities from the Borough within a reasonable period of time as determined by the Borough;

Require the grantee to maintain and operate its system for a period of up to 18 months or such further time as may be mutually agreed upon. During any time the grantee continues to operate the system, it shall do so pursuant to the terms of this chapter and its franchise agreement and shall be entitled to the revenues from the system.

Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave the prevailing prior to the grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The Borough shall inspect and approve the condition of the public ways and public places and cables, wires, attachments, and poles after removal. The liability, indemnity, insurance and performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this subsection, this chapter and the franchise agreement.

Restoration by Borough; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection E or F of this section, or any other work required by Borough law or ordinance within the time as may be established and to the satisfaction of the Borough, the Borough may cause such work to be done and the grantee shall reimburse the Borough the cost thereof within 30 days after receipt of an itemized list of such costs, or the Borough may recover such costs through the performance bond or letter of credit provided by the grantee. The Borough shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

§ 122-14 Receivership and foreclosure.

Termination by insolvency. The franchise granted hereunder shall, at the option of the Borough, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or similar action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise agreement, and the receivers or trustees within said 120 days shall have remedied all defaults under this chapter or the franchise agreement; and

Such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise agreement and the chapter.

Termination by judicial action. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the grantee or any part thereof, including or excluding the franchise, the Borough may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee granted hereunder shall cease and terminate 30 days after service of such notice, unless:

The Borough shall have the approved transfer of the franchise, in the manner this chapter provides; and