This ordinance shall be known and may be cited as the "Borough of Downingtown
Community Antenna Television Ordinance."
When used in this ordinance, 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):
AFFILIATE
An entity which owns or controls, is owned or controlled by or is
under common ownership with the grantee.
ANNIVERSARY DATE
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.
BASIC CABLE
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.
BASIC SUBSCRIBER REVENUES
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.
BOROUGH
The Borough of Downingtown, also called the "franchising authority."
CABLE SERVICE
The one-way transmission to subscribers of video programming or other
programming service and subscriber interaction, if any, which is required
for the selection of such video programming or other programming service.
CABLE TELEVISION SYSTEM (CATV)
A system consisting 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 to subscribing
members of the public within the Borough of Downingtown for a fixed or periodic
fee, employing wires or cables passing along, over, under, across and upon
streets, ways, lanes, alleys, parkways, bridges, highways and other public
places, including property of which the Borough has an easement or right-of-way,
and including facilities which, in addition to providing such reception, amplification
and distribution, are also used to originate and distribute programs or other
communication services or materials to such subscribers.
COMMERCIAL SUBSCRIBER
A person who contracts to receive the signals amplified and distributed
or locally originated and distributed by the grantee and carried, consistent
with the community antenna television rules of the Federal Communications
Commission, to provide service to television sets of others, or a person who
exhibits programs to customers or the general public.
COUNCIL
The Borough Council of the Borough of Downingtown.
FRANCHISE
The initial authorization or renewal thereof issued by the Borough,
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.
FRANCHISE AREA
That area within the limits of the Borough of Downingtown as now
or hereafter constituted.
GRANTEE
The grantee (franchise holder) of rights granted by the Borough under
this ordinance; a franchisee.
GROSS BASIC SUBSCRIBER REVENUES
The monthly cable service revenues actually received by the grantee
from subscribers of the cable system, including fees for converters. Excluded
are revenues actually received in payment for Prism, HBO, Cinemax, Showtime,
Disney and similar programming. Such phrase shall not include pay-per-view
(PPV) revenues or revenues received from any advertising carried on the cable
system, nor shall such phrase include any taxes on cable service 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.
PAY-PER-VIEW
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.
PAY SERVICE REVENUES
Gross basis subscriber revenues received from so-called premium channels
such as, but not limited to, Prism, HBO, Cinemax, Showtime, Disney and similar
programming less the amount which the franchisee actually pays to the provider
of said service.
PERSON
An individual, partnership, association, joint-stock company, trust
corporation or other legal entity.
PROPERTY OF GRANTEE
All property owned, installed or used by the grantee in the conduct
of a cable television system in the Borough.
PUBLIC WAY
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 Borough.
SERVICE TIER
A category of cable service or other services, provided by the grantee,
and for which a separate charge is made by the grantee.
STATE-OF-THE-ART
The latest in cable television technology which may be practically
applied within the Borough.
SUBSCRIBER
A person or user of the cable system who lawfully receives cable
service or other service therefrom with the grantee's expressed permission.
VIDEO PROGRAMMING
Programming provided by or generally considered comparable to programming
provided by a television broadcast station.
Upon application duly made, the Borough 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
Borough, 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 Borough-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 the Borough. The Borough may promulgate a form for
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 ordinance 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 Borough 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 Borough. 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 Borough. Such adjustments shall be accomplished through notification
filed with the Borough Secretary and shall occur automatically on the date
established by the grantee.
The grantee shall maintain on file with the Borough Secretary a schedule
setting forth all rates and charges to be made to subscribers for basic cable
television service, including connection and service charges. A copy of the
current rates is attached hereto and made a part hereof by reference thereto
and marked Exhibit A. Notice of changes in rates and charges shall be filed with the
Borough Secretary. The grantee shall submit such notice of rate changes at
least 30 days prior to the effective date of the adjusted rates. The Borough
shall, at its option, have the opportunity to meet with the grantee to discuss
rate adjustments, provided that such meetings occur at least 10 days prior
to the effective date of such 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 any agency of government or court of competent jurisdiction.
Individual commercial subscriber rates shall be the same as residential subscriber
rates.
The Borough 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 ordinance, or in the event that 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 Borough,
the following provisions shall apply:
A. Notice of violation. In the event that the Borough alleges
that the grantee has not complied with the terms of this ordinance or the
franchise agreement, it shall notify the grantee of the exact nature of the
alleged noncompliance.
B. The grantee's right to cure or respond. The grantee shall
have 30 days from receipt of the notice described in this section to respond
to the Borough, contesting the allegation of noncompliance or 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 Borough may reject the grantee's proposed remedy and
time for performance in the event that the same is not reasonable.
C. Public hearing. In the event that the grantee fails to
respond to the Borough's notice or in the event that the alleged default is
not remedied within 30 days after the Borough's initial notification (or any
extension agreed to by the Borough for performance), the Borough shall schedule
a public hearing to investigate the grantee's default. 10 days prior notice
of the hearing shall be conducted in accordance with the Local Agency Law.
D. Enforcement. Subject to applicable federal and commonwealth
law, in the event that the Borough, after hearing, determines that the grantee
is in default of its franchise agreement or any of the provisions of this
ordinance, the Borough may:
(1) Foreclose on all or any part of any security provided
under this ordinance, if any, including, without limitation, any bonds or
other surety; provided, however, that such foreclosure shall only be in such
a manner and in such amount as the Borough 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 Borough; 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 ordinance or the franchise
agreement by reason of any failure of the Borough to enforce prompt compliance.
The Borough's waiver of any grantee's noncompliance or default, at any time,
shall not act as a waiver of any future default; provided, however, that the
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 way
or other Borough 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 Borough 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.
From and after the effective date of this ordinance, it shall be unlawful
for any person to construct, install or maintain within any public way in
the Borough or on any other public or private property within the Borough
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 Borough, 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 ordinance or of a franchise
agreement or fail to comply with any lawful provision of any Borough 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 the
Borough, 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 Borough'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 ordinance and the franchise agreement, and such franchise may be
terminated by the Borough.
Any cable television franchise operating within the Borough existing on the effective date of this ordinance shall be subject to its provisions. Within 30 days following adoption of this ordinance, the Borough shall undertake proceedings pursuant to §
A291-5 hereof to determine renewal of any existing franchise, which franchise shall then be subject to all of the terms and conditions of this ordinance. Within 30 days of any such Council authorized renewal, the Borough and the grantee thereof shall enter into a revised cable television franchise agreement complying with the provisions of this ordinance. Failure on the part of any existing franchise holder to comply with the renewal process shall subject it to the termination provisions of §
A291-17 hereof.
All prior ordinances of the Borough regulating the subject of cable
television franchises are hereby repealed in their entirety. All other Borough
ordinances inconsistent herewith are replaced to the extent of their inconsistency
only.
If any provision, section, subsection, sentence, clause, phrase or other
portion of this ordinance or the application thereof to any person or circumstance
is held to be unconstitutional, illegal or in conflict by a court of competent
jurisdiction or by any federal agency, including the Federal Communications
Commission, the remainder of this ordinance and the application of such provisions
to other persons and circumstances shall not be affected thereby, and to this
end such portion of the ordinance shall be deemed a separate, distinct and
independent provision and not affecting the validity of the remainder of this
ordinance.
This ordinance shall become effective on January 1, 1991.