[HISTORY: Adopted by the Board of Commissioners
of the Township of Lower Merion as indicated in article histories.
Amendments noted where applicable.]
[Adopted 5-20-1998 by Ord. No. 3489]
The purpose of this article is to establish
general guidelines for the siting of wireless communication facilities.
The goals of this article are to:
A.
Provide procedures and guidelines for the location,
placement and construction of wireless communication facilities in
the Township and for payment of fees and charges that are uniformly
applied to all persons.
B.
Provide clear performance standards and review requirements
addressing the siting of wireless communication facilities.
C.
Encourage the location of wireless communication facilities
on existing structures, including utility poles, signs, water towers,
buildings and other wireless communication facilities where feasible.
D.
Ensure that wireless communication facilities will
be safe and blend into their environment to the greatest extent possible.
E.
Encourage collocation and site sharing of new and
existing wireless communication facilities.
F.
Encourage the use of public property and structures
for wireless communication facilities to the greatest extent possible
and provide for mechanisms to achieve fair and equitable rental for
the use of such property.
G.
Enhance the ability of providers of wireless communication
services to provide such services to the Township quickly, effectively
and efficiently.
H.
Establish guidelines and standards for use of the
rights-of-way ("ROW").
I.
Preserve the residential character of adjacent neighborhoods.
J.
Comply with the Telecommunications Act of 1996.
Unless otherwise expressly stated or where the
context clearly indicates a different meaning, the following words
and phrases shall be construed throughout this article to have the
meanings indicated in this article:
One or more rods, panels, discs or similar devices used for
the transmission or reception of radio frequency signals, which may
include omnidirectional antenna (rod), directional antenna (panel)
and parabolic antenna (disc). The antenna array does not include the
support structure defined below.
Any person that applies for a wireless communication facility
building permit, zoning approval and/or for permission to use the
ROW or other Township owned land or property.
The process by which a person submits a request to develop,
construct, build, modify or erect a wireless communication facility
upon a parcel of land. Application includes all written documentation,
verbal statements and representations, in whatever form or forum,
made by an applicant to the Township concerning such a request.
A wireless communication facility, some component of which
is attached to an attachment structure.
A building which is 35 or more feet in height or an existing
structure suitable for the support of a wireless communication facility,
but which has been designed and constructed for another purpose. Such
existing structures shall include, but not be limited to: utility
poles, signs, water towers and municipally-owned towers.
The Board of Commissioners of the Township of Lower Merion,
Pennsylvania.
A staff committee appointed by the Township Manager which
shall include the Director of Building and Planning and the Township
Engineer.
[Amended 1-19-2002 by Ord. No. 3631]
A Township of Lower Merion official whose duties include, as Zoning Officer, the administration of Chapter 155, Zoning.
[Amended 1-19-2002 by Ord. No. 3631]
Any engineer licensed by the Commonwealth of Pennsylvania.
Any structure or enclosure used to contain ancillary equipment
as a component of a wireless communication facility, including a cabinet,
shelter, a build-out of an existing structure or a pedestal.
When used in conjunction with "ROW," means above, along,
in, over, under, upon or within the ROW.
A wireless communication facility consisting of an equipment
facility capable of being mounted onto the attachment or support structure
and antenna that is either:
Any person, including the Township, with fee title or a long-term
(exceeding 10 years) leasehold to any parcel of land within the Township.
Any individual, corporation, partnership, joint venture,
agency, unincorporated association or municipal corporation or agency
within the Commonwealth of Pennsylvania, or any combination thereof.
A person, not a public utility, who is licensed by the Federal
Communications Commission to provide telecommunications service to
the public.
An entity regulated by the Pennsylvania Public Utility Commission.
The surface, air space above the surface and the area below
the surface of any railroad.
The surface, air space above the surface and the area below
the surface of any street.
Any wireless communication facility which is designed to
enhance compatibility with adjacent land uses, including, but not
limited to, architecturally screened and/or landscaped antenna arrays
and equipment facilities and support structures designed to look other
than like a support structure, such as a light pole, a power pole,
a component of a building or a tree.
A right-of-way, publicly or privately owned, serving as a
means of vehicular and pedestrian travel and furnishing access to
abutting properties and space for sewers and public utilities.
A structure designed and constructed to support an antenna
array or micro facility and may include a utility pole, a monopole,
self-supporting (lattice) or guy-wire support tower and other similar
structures.
The authorization from the Township that must be obtained
to occupy the ROW to provide wireless communication services.
Any personal wireless service as defined by the Telecommunications
Act of 1996, which includes FCC licensed commercial wireless telecommunications
services, including cellular, personal communication services (PCS),
specialized mobile radio (SMR), enhanced specialized mobile radio
(ESMR), paging and similar services that currently exist or that may
in the future be developed.
Any unstaffed facility for the transmission and/or reception
of wireless communication services, usually consisting of an antenna
array or micro facility, connection cables, an equipment facility
and a support structure or attachment structure to achieve the necessary
elevation.
A.
Pre-existing wireless communication facilities. Wireless communication facilities for which a permit has been issued prior to the effective date of this article shall not be required to meet the requirements of this article, except as provided in § 140-12, nonconforming wireless communication facilities.
B.
Exclusion for amateur radio facilities. This article
shall not govern the installation of any amateur radio facility that
is owned or operated by a federally licensed amateur radio station
operator or is used exclusively for receive-only antennas.
C.
Relationship to other chapters. This article shall
supersede all conflicting requirements of other chapters of this Code
regarding the locating and permitting of wireless communication facilities.
D.
The placement of wireless communication facilities in a ROW shall be governed by this article and shall not be subject to the requirements of Chapter 155, Zoning. The placement of wireless communication facilities outside of a ROW shall be governed both by the requirements of this article and those of Chapter 155, Zoning.
A.
It is intended that the requirements in this article
shall permit the Township to evaluate a variety of different circumstances
relating to the location, placement and construction of wireless communication
facilities in the Township. Through the review process, the Township
may approve the use of wireless communication facilities, issue building
permits, establish requirements for construction, permit the use of
Township-owned lands, ROW and attachment structures and collect applicable
fees and charges. The Township seeks to encourage collocation, the
use of existing structures, minimalizing visually intrusive installations
and the development of microcell design.
B.
Because the design technologies and siting requirements
of wireless communication facilities vary from applicant to applicant,
the application and review procedures set forth herein are intended
to permit the Township the greatest amount of latitude in reviewing
such applications.
C.
This article is intended to regulate the construction and maintenance of wireless communication facilities in the ROW and on public and private property. All such construction must conform to the construction standards set forth herein and in Chapter 133, Streets and Sidewalks. The use of private property outside of the ROW for the construction and maintenance of wireless communication facilities must also conform to the provisions of Chapter 155, Zoning.
D.
In distinguishing micro facilities from other wireless
communication facilities solely on the basis of physical size and
not technology, the Township seeks to encourage the use of facilities
creating less visual impact and reduce the proliferation of large
equipment facility enclosures.
A.
All applications for installation of a wireless communication
facility shall include a sworn affidavit from a radio frequency engineer
that the placement of the wireless communication facility will not
interfere with public safety communications and the usual and customary
transmission or reception of radio, television or other communication
services enjoyed by adjacent residential and nonresidential properties.
B.
The Telecommunications Act of 1996 gives the FCC sole
power to regulate radio frequency ("RF") emissions and does not allow
the Township to condition or deny on the basis of RF impacts the approval
of any wireless communication facilities which meet or exceed FCC
standards. In order to make available information to Township citizens,
the applicant shall provide to the Township copies of ongoing FCC
information and RF emission standards for transmissions from a wireless
communication facility with support structure or an attached wireless
communication facility. Applicants shall be required to submit information
on the proposed power intensity of their wireless communication facilities.
Applicants shall demonstrate that the proposed wireless communication
facilities meet or exceed FCC standards and shall supplement that
information upon the request of the Township no less frequently than
annually. Once installed, any technical change that could increase
power or output of the wireless communication facility shall be immediately
reported to the Township.
C.
All applications shall include a copy of the provider's
current Federal Communications Commission license. The provider shall
maintain with the Township the current name, address and emergency
telephone number of the owner or operator of the support or attachment
structure on which the antenna array is mounted.
D.
Upon receipt of an application, the Township shall
mail notice thereof to the owner or owners, if their residence is
known, or to the occupier or occupiers of every residentially zoned
property on the same street within 500 feet of the site of the proposed
facility and of every residentially zoned property not on the same
street within 150 feet of the proposed facility, provided that failure
to give notice required by this subsection shall not invalidate any
action taken with respect to the application.
A.
Uses permitted. Micro facilities are the only type
of wireless communication facilities permitted in a ROW.
B.
Support structure. The antenna array must be mounted
on a monopole support structure, such as a utility pole, in compliance
with construction standards approved by the Township Engineer. The
support structure must be located in proximity to other similar support
structures within the right-of-way and cannot exceed them in height
by more than five feet.
C.
ROW use agreement. Every provider who desires to construct,
install or maintain wireless communication facilities in the ROW must
enter into a right-of-way use agreement with the Township as a prerequisite
to the issuance of ROW use permits.
D.
ROW use permit required. Every provider who constructs, installs or maintains a wireless communication facility in the ROW must obtain a ROW use permit for each such facility by making application to the Department of Building and Planning for each location and paying a fee therefor as prescribed in Chapter A167. A single application may request permits for multiple sites.
[Amended 1-19-2002 by Ord. No. 3629]
(1)
Nature of grant. A use permit shall not convey title,
equitable or legal, in the ROW. A use permit grants the right to occupy
a ROW in the Township and may also grant the right to erect a new
support structure.
(2)
Support structure attachment agreement. If the antenna
array is to be erected on a third party's support structure, the consent
of the third party must be attached to the application. If the antenna
array is to be erected on a Township support structure, the application
shall include a request therefor. If granted, the provider must enter
into a support structure attachment agreement with the Township and
pay an annual fee for the use of the Township's facilities.
(3)
Transfer of permit. Use permits may be transferred
upon notification to the Township and acceptance by the transferee,
but only to a provider who is a party to a current ROW use agreement
with the Township.
(4)
Term of use permits. Use permits shall have a one
year term, automatically renewable, subject to then current code provisions
and the payment of an annual user fee to the Township.
(5)
Location. The Township shall refuse to issue a use
permit if the proposed location of the wireless communication facility
interferes with the use of the ROW by others or is contrary to public
safety. The Township shall require a permitted wireless communication
facility to be relocated at the permittee's expense if necessary to
accommodate the location or relocation of the ROW facilities of the
Township or a public utility or to protect the public safety.
E.
Equipment facility. In the event that any equipment
facility of an outside volume exceeding eight cubic feet is installed
in the ROW, such equipment facility must be installed so that the
roof or lid is either below or is flush with local ground-level grade.
All such equipment facilities shall be shown in the application. The
Board of Commissioners may grant a waiver to this requirement, on
a case-by-case basis, upon the applicant's showing of need, provided
that the facility does not constitute an obstruction in the ROW which
would endanger public safety.
(1)
Equipment cabinets of any size on a support base located
outside of the ROW used in conjunction with a wireless communications
facility within the ROW will not be considered a separate use of the
property upon which they are located, except in a residentially zoned
district.
[Amended 1-19-2002 by Ord. No. 3629; 9-23-2009 by Ord. No. 3891]
A.
Uses permitted. Any wireless communication facility is permitted
in a railroad ROW.
B.
Support structure. The antenna array must be mounted on an attachment
structure no more than 100 feet in height if within 150 feet of a
residential zoning district. If elsewhere, it may be mounted on an
attachment structure no more than 200 feet in height. In all cases,
the construction must comply with standards approved by the Township
Engineer.
C.
Building permit required. Every provider who constructs, installs
or maintains a wireless communication facility in a railroad ROW must
obtain a building permit for each such facility by making application
to the Department of Building and Planning.
(1)
Support structure attachment agreement. If the antenna array is to
be erected on a third party's support or attachment structure, the
consent of the third party must be attached to the application.
(2)
Location. The Township shall refuse to issue a building permit if
the proposed location of the wireless communication facility interferes
with the use of a ROW by others or is contrary to public safety. The
Township shall require a permitted wireless communication facility
to be relocated at the permittee's expense if necessary to accommodate
the location or relocation of ROW facilities of the Township or a
public utility or to protect the public safety.
D.
Equipment facility. An equipment facility required for a wireless
communications facility shall comply with the following requirements:
(1)
The equipment facility must be located within the railroad right-of-way unless it complies with Subsection D(1)(a) and (b) below.
(a)
The equipment facility may be located outside the railroad right-of-way,
provided that such equipment is located in an adjacent public utility
right-of-way/easement.
(b)
Approval from the owner of the land on which the wireless equipment
is located shall be obtained prior to installation of any equipment
authorized under this section.
(2)
All equipment facilities shall be screened from adjacent residential
properties by a planted buffer that provides a total visual screen
of any equipment. The buffer plantings shall be installed and maintained
by the wireless communication facility applicant.
(3)
In the event that any equipment facility of an outside volume exceeding
eight cubic feet is installed in the ROW, such equipment facility
must be installed so that the roof or lid is either below or is flush
with local ground level grade. All such equipment facilities shall
be shown in the application. The Board of Commissioners may grant
a waiver to this requirement, on a case-by-case basis, upon the applicant's
showing of need.
[Amended 1-19-2002 by Ord. No. 3631]
A.
Attached micro facilities. A micro facility may be erected outside of a ROW on any attachment structure over 35 feet in height in compliance with Chapter 155, Zoning, upon application to the Director of Building and Planning. The provider's application shall include:
(1)
The name, address and telephone number of the owner
and lessee of the parcel of land upon which the micro facility is
proposed to be situated. If the applicant is not the owner of the
parcel of land or of the attachment structure, the written authorization
of the owner shall be evidenced in the application.
(2)
The legal description, parcel number, block and unit
number and address of the parcel of land upon which the micro facility
is to be situated.
(3)
A description and illustration of the stealth design,
which shall be subject to the approval of the Communication Facilities
Committee.
B.
Wireless communication facilities other than attached micro facilities. Wireless communication facilities other than attached micro facilities may be erected outside of a ROW in compliance with Chapter 155, Zoning, upon application to the Director of Building and Planning. If a special exception is required by § 155-10.10, the application shall be made to the Zoning Officer. The provider's application shall include:
[Amended 2-26-2020 by Ord. No. 4184]
(1)
A scaled plan and a scaled elevation view and other
supporting drawings, calculations and documentation showing the location
and dimensions of the wireless communication facility and all improvements
associated therewith, including information concerning attachment
structure specifications, antenna locations, equipment facility, landscaping,
fencing and, if relevant, topography, adjacent uses and existing vegetation.
(2)
The name, address and telephone number of the owner
and lessee of the parcel of land upon which the wireless communication
facility is proposed to be located. If the applicant is not the owner
of the parcel of land or of the attachment structure, the written
authorization of the owner shall be evidenced in the application.
(3)
The legal description, parcel number, block and unit
number and address of the parcel of land upon which the wireless communication
facility is to be situated.
(4)
A description and illustration of the stealth design,
which shall be subject to the approval of the Communication Facilities
Committee. In order to assist the Township in evaluating visual impact,
the applicant shall submit with its application color photo simulations
showing the proposed site of the wireless communication facility with
a photo-realistic representation of the proposed wireless communication
facility as it would appear viewed from the closest residential property,
adjacent roadways and additional locations as necessary.
(5)
Written, technical evidence from an Engineer acceptable
to the Fire Marshal and the Director of Building and Planning that
the proposed wireless communication facility does not pose a risk
of explosion, fire or other danger to life or property due to its
proximity to volatile, flammable, explosive or hazardous materials,
such as LP gas, propane, gasoline, natural gas or corrosive or other
dangerous chemicals.
A.
The fees, charges and rental prescribed by the Board of Commissioners and which must be paid for the installation and maintenance of a wireless communication facility in the Township are set forth in the Telecommunications Fee Schedule contained in Chapter A167, Fees, hereof.
B.
Application fee and escrow deposit.
(1)
The applicant shall pay the Township an application
fee as described in the Telecommunications Fee Schedule at the time
of filing the application.
(2)
An applicant seeking to install one or more wireless
communication facilities outside the ROW shall also establish a single
escrow deposit with the Township, as set forth in the Telecommunications
Fee Schedule, out of which the Township will make payment of the fees
and charges of those consultants and professional advisors as deemed
necessary by the Township for the processing of the application. The
applicant shall be requested to replenish the escrow if sufficient
funds are not available to make such payments and shall make such
additional payments within 10 business days of the request, in default
of which the processing of any of applicant's applications shall be
suspended. Failure to make such payment within 30 business days of
the request shall result in all pending applications being rejected.
(3)
If requested, the Township shall supply the applicant
with an itemized statement of the use of the escrow funds at the time
any request for additional payment is made and at the time the escrow
is closed out, at which time any balance in the account shall be returned.
C.
Payments and charges relating to the construction
and maintenance of micro facilities in the ROW.
(1)
For micro facilities installed in the ROW, the applicant must pay an annual ROW use fee as set forth in Chapter A167, Fees.
(2)
For micro facilities located on Township owned attachment
structures in the ROW, the applicant must also enter into a support
structure attachment agreement with the Township and pay the Township
the rental fees therefore described in the Telecommunications Fee
Schedule.
D.
Payments and charges applicable to wireless communication
facilities on Township owned lands and attachment structures not in
ROW. The Township Manager or his/her designee is authorized to negotiate
the terms of a lease agreement and the appropriate rental for the
use of Township owned lands and attachment structures. The availability
of space on Township facilities shall be determined on a case-by-case
basis and made available to providers on a first-come first-served
basis. No building permit for a wireless communications facility will
be issued with respect to Township property until the lease agreement
has been accepted by the Township.
E.
Timing and place of payment. Unless otherwise agreed
to in writing, all fees shall be paid in advance. Payments shall be
delivered to the attention of the director of the permitting department.
F.
Taxes and assessments. To the extent taxes or other
assessments are imposed by taxing authorities on the use of Township
property as a result of an applicant's use or occupation of the ROW
or of Township owned or leased property, the applicant shall be responsible
for payment of such taxes, payable annually unless otherwise required
by the taxing authority. No rental payment shall constitute a payment
in lieu of any tax, fee or other assessment, except as specifically
provided in this article or as required by applicable law.
G.
Interest on late payments. In the event that any fee
is not actually received by the Township on or before the applicable
date fixed in the use agreement, interest thereon shall accrue from
such date until received at 15% per annum.
A.
Wireless communication facility providers shall at
all times employ ordinary and reasonable care and install and maintain
in use nothing less than the best available technology for preventing
failures and accidents which are likely to cause damage, injury or
nuisance to the public.
B.
Wireless communication facility providers shall install
and maintain wireless communication facilities, wires, cables, fixtures
and other equipment in substantial compliance with the requirements
of the National Electric Code and all FCC, state and local regulations
and in such manner that will not interfere with the use of other property.
C.
Wireless communication facilities shall at all times
be kept and maintained in good condition, order and repair by qualified
maintenance and construction personnel, so that the same shall not
menace or endanger the life or property of any person.
D.
Noise. Wireless communication facilities shall be
operated and maintained so as not to produce noise in excess of the
applicable noise standards under state law or the Township code, except
in emergency situations requiring the use of a backup generator, where
the noise standards may be exceeded on a temporary basis.
E.
In the event that the use of a wireless communication
facility is discontinued, the owner shall provide written notice to
the Township of its intent to discontinue use and the date when the
use shall be discontinued. If such wireless communication facility
is not removed within 90 days, the Township may remove it at the owner's
expense.
F.
Inspections. The Township and/or its agents shall have authority to enter onto the property upon which a wireless communication facility is located at any time, upon reasonable notice to the provider (which notice shall provide an opportunity for the provider's supervision of such entry), for any purposes associated with the permitted use of the property, including, but not limited to, the purpose of determining whether the wireless communication facility complies with this article, Chapter 62, Building Construction, of the Lower Merion Township Code and all other construction standards provided by the Township's code and federal and state law.
A.
Within seven business days of receipt, the Township
may return any incomplete application without taking action, but shall
identify the missing documentation or information.
B.
If application is made to the Director of Building
and Planning, the decision shall be in writing and shall be rendered
within 30 days of the submission of a complete application. A decision
to deny the application shall be preliminary and shall become final
only after the applicant has received the preliminary decision and
has been given 10 days within which to request a hearing before the
Building and Planning Committee of the Board of Commissioners. If
such a hearing is not requested, the decision shall become final at
the end of the ten-day period. If a hearing is requested, a written
record shall be made, and the Building and Planning Committee shall
render a final, written decision supported by substantial evidence
contained in the written record within 45 days of the close of the
hearing.
[Amended 1-19-2002 by Ord. No. 3631]
C.
The Township reserves the right to deny any application
on its merits and also where any one of the following conditions exist:
(1)
The applicant is not licensed by the Federal Communications
Commission as a provider or is not authorized to conduct business
in the Commonwealth of Pennsylvania; or
(2)
The applicant has failed within the past three years
to comply or is presently not in full compliance with the requirements
of this article; or
(3)
The applicant is in default of its obligation to pay
to the Township fees imposed by this article.
D.
The placement of any wireless communication facility
in an historic district or in a ROW adjacent thereto, must receive
a certificate of appropriateness from the Board of Commissioners.
Wireless communication facilities in existence
on the date of the adoption of this article, which do not comply with
the requirements of this article (nonconforming wireless communication
facilities), are subject to the following provisions:
A.
Any provider maintaining a nonconforming wireless
communication facilities in a ROW must enter into a ROW use agreement
and secure a ROW use permit within 90 days of the enactment of this
article. By doing so the provider may continue, but not expand, use
of such facilities, except as provided in this section.
B.
Additional antenna array (belonging to the same or
another provider) may be added to a nonconforming wireless communication
facility in conformance with the application procedures set forth
in this article.
C.
Nonconforming wireless communication facilities which
are hereafter damaged or destroyed due to any reason or cause may
be repaired or restored at their former location, but must otherwise
comply with the Township Code.
D.
A provider may replace, repair, rebuild and/or expand
its wireless communication facility in order to improve the structural
integrity of the facility, to allow the facility to accommodate collocated
antennas or facilities or to upgrade the facility to current engineering,
technological or communication standards without having to conform
to the provisions of this article, so long as such facilities are
not increased in height by more than 10% and/or setbacks are not decreased
by more than 10%.
A.
Any person who shall erect, construct, reconstruct,
alter, repair, convert, attach or maintain any wireless communication
facility in violation of any of the terms of this article, or who,
being the owner or agent of the owner of any lot, tract or parcel
of land, shall suffer or permit another to erect, construct, reconstruct,
alter, repair, convert, attach or maintain any such facility, shall
be deemed to have violated the provisions hereof and shall be subject
to a fine of up to $600 per day during the period such violation shall
exist, collected as like fines or penalties are by law collected.
B.
If any wireless communication facility is erected,
constructed, reconstructed, altered, repaired, converted, attached
or maintained in violation of this article or of any regulations made
pursuant hereto, the proper officer of the Township, in addition to
other remedies, may institute in the name of the Township any appropriate
action or proceeding, whether by legal process or otherwise, to prevent
such unlawful erection, construction, reconstruction, alteration,
repair, conversion, maintenance, attachment or use, to restrain, correct
or abate such violation, to prevent the use of such facility and/or
to prevent any illegal act, conduct, business or use in or about such
facility.
[Adopted 10-20-1999 by Ord. No. 3545]
A.
The Township of Lower Merion (Township), pursuant
to applicable federal and state law, is authorized to grant one or
more nonexclusive franchises to construct, operate, maintain and reconstruct
cable systems within the Township limits.
B.
The Board of Commissioners finds that the development
of cable systems has the potential of benefiting the residents of
the Township. Because of the complex and rapidly changing technology
associated with cable television, the Board of Commissioners further
finds that the public convenience, safety and general welfare can
best be served by establishing regulatory powers which should be vested
in the Township or such persons as the Township shall designate.
C.
The Board of Commissioners finds that the Township's
residents would benefit from educational and public services through
cable systems.
D.
The Board of Commissioners finds that the cable industry
is in a period of rapid growth and should proceed in accord with regional
service objectives.
E.
The Board of Commissioners finds that there is a need
to develop a Township cable policy; to promote that rapid development
of the cable communications industry responsive to community and public
interest; to assure that cable operators provide adequate, economical
and efficient service to their subscribers; and to assure channel
availability for municipal services, educational television, program
diversity and local expression.
F.
It is the intent of this article and subsequent amendments
to provide for and specify the means to attain the best possible cable
service to the public. Any franchises issued pursuant to this article
shall be deemed to include this finding as an integral part thereof.
For the purpose of this article, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this § 140-16. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
The Cable Television Evaluation and Advisory Committee of
the Township of Lower Merion, Pennsylvania.
Shall have the meaning given in 47 U.S.C. § 522(3),
as it may be amended from time to time. Currently, this provision
defines basic cable service as any service tier which includes the
retransmission of local television broadcast signals.
The Board of Commissioners of the Township of Lower Merion,
Pennsylvania.
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-611
(1982 and Supp. V 1987)) as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. No. 102-385, and the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
(1996), and as may, from time to time, be amended.
Shall have the meaning given in 47 U.S.C. § 522(6),
as it may be amended from time to time. Cable service shall also include
any additional services as defined in the franchise agreement. Currently,
47 U.S.C. § 522(6) defines cable service as:
Shall have the meaning given in 47 U.S.C. § 522(7),
as it may be amended from time to time. Currently, this provision
defines cable system as a facility, consisting of a set of closed
transmission paths and associated signal generation, reception and
control equipment designed to provide cable service which includes
video programming and which is provided to multiple subscribers within
a community, 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 rights-of-way;
A facility of a common carrier which is subject,
in whole or in part, to the provisions of 47 U.S.C. §§ 201-226,
except that such facility shall be considered a cable system to the
extent that such facility, whether on a common carrier basis or otherwise,
is used in the transmission of video programming directly to subscribers;
or
A facility of an electric utility used solely
for operating its electric utility system.
Shall have the meaning given in 47 U.S.C. § 522(4),
as it may be amended from time to time. Currently, this provision
defines channel as a portion of the electromagnetic frequency spectrum
which is used in a cable system and which is capable of delivering
a television channel as defined by the Federal Communications Commission.
An initial authorization, or renewal thereof, issued by the
Township, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, agreement or otherwise,
which authorizes the construction or operation of a cable system.
A franchise granted pursuant to this article, containing
the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
Any tax, fee or assessment of any kind imposed by the Township
or other governmental entity on a grantee or cable subscriber, or
both, solely because of their status as such. The term "franchise
fee" does not include any tax, fee or assessment of general applicability
(including any such tax, fee or assessment imposed on both utilities
and cable operators or their services but not including a tax, fee
or assessment which is unduly discriminatory against cable operators
or cable subscribers); capital costs which are required by the franchise
agreement to be incurred by the cable operator for public, educational
or governmental access facilities; requirements or charges incidental
to the awarding or enforcing of the franchise, including payments
for bonds, security funds, letters of credit, insurance, indemnification,
penalties or liquidated damages; or any fee imposed under Title 17
of the United States Code.
Any person receiving a franchise pursuant to this article
and its agents, employees, officers, designees or any lawful successor,
transferee or assignee.
All revenues derived directly or indirectly by the grantee
or an person in which the grantee has a financial interest from or
in connection with the operation of the system and based on cable
service, pursuant to a franchise granted hereunder, except it shall
not include bad debt, sales tax or other taxes or charges imposed
on the grantee in addition to its franchise fee and other franchise
obligations and collected for direct pass through to state or federal
government.
The connection of the system to subscribers' terminals, and
the provision of cable service.
Dedicated capacity and equipment, both upstream and downstream,
to provide video, voice and data communication services to nonresidential
users.
The provision of cable modem service and transport over the
cable system of Internet and other high-speed data communications.
The hours during which most businesses in the community are
open to serve customers. In addition, normal business hours must include
some evening hours at least one night per week and/or some weekend
hours.
Those service conditions which are within the control of
the grantee. Those conditions which are not within the control of
the grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages and severe
or unusual weather conditions and significant legislative or regulatory
requirements. Those conditions which are ordinarily within the control
of the grantee include, but are not limited to, special promotions,
regular peak or seasonal demand periods and maintenance or upgrade
of the system.
Any natural person or any association, firm, individual,
government, school, partnership, joint stock company, joint venture,
trust, corporation, limited liability company or other legally recognized
entity, private or public, whether for-profit or not-for-profit.
Any section, subsection or provision of this article.
The entire geographic area within the Township as it is now
constituted or may in the future be constituted, unless otherwise
specified in the franchise agreement.
The loss of picture or sound on one or more cable channels
affecting at least 10% of the subscribers on the system.
The Commonwealth of Pennsylvania.
Each of the following which have been dedicated to the public
or are hereafter dedicated to the public and maintained under public
authority or by others and located within the Township limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public property and areas that the Township
shall permit to be included within the definition of street from time
to time.
Any person who or which lawfully elects to subscribe to,
for any purpose, cable service provided by the grantee by means of
or in connection with the cable system and who pays the charges therefore,
except such persons or entities authorized to receive cable service
without charge as described in the franchise agreement.
The Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 (1996) (to be codified at 47 U.S.C. § 251 et
seq.), as may be amended from time to time.
The Township of Lower Merion, Pennsylvania, as represented
by the Board of Commissioners or any delegate acting within the scope
of its jurisdiction.
A franchise granted by the Township under the
provisions of this article shall encompass the following purposes:
A.
To engage in the business of providing cable service,
and such other services as may be permitted by the franchise agreement.
B.
To erect, install, construct, repair, rebuild, reconstruct,
replace, maintain and retain cable lines, related electronic equipment,
supporting structures, appurtenances and other property in connection
with the operation of a cable system in, on, over, under, upon, along
and across streets or other public places within the designated service
area.
C.
To maintain and operate said franchise properties
for the origination, reception, transmission, amplification and distribution
of television and radio signals for the delivery of cable services
and any other services permitted by the franchise agreement.
D.
To set forth the obligations of a grantee under the
franchise agreement.
E.
This article does not authorize the provision of telecommunication
services, as that term is defined by the Telecommunications Act. Such
services shall be governed by a separate telecommunications ordinance
based on the authority granted the Township by the Telecommunications
Act and any terms specified by a franchise agreement. However, it
is recognized that many services may not clearly fit within a standard
definition of telecommunications services. For this reason, the Township
reserves the right to agree to services, offered by a grantee, as
cable service and include in the definition cable service in a franchise
agreement made pursuant to this article.
It shall be unlawful for any person to construct,
install or operate a cable system or to provide cable services in
the Township within any street or public rights-of-way without a properly
granted franchise awarded pursuant to the provisions of this article.
A.
Any person desiring an initial franchise for a cable system shall file an application with the Township. A reasonable nonrefundable application fee established by the Township shall accompany the application or renewal application. Such application fee shall not be deemed a "franchise fee" within the meaning of Section 622 of the Cable Act (47 U.S.C. § 542), and such payments shall not be deemed to be "payments in kind" or any involuntary payments chargeable against the compensation to be paid to the Township by the grantee pursuant to § 140-29 hereof and applicable provisions of a franchise agreement or part of the compensation to be paid to the Township by the grantee pursuant to § 140-29 hereof and applicable provisions of a franchise agreement.
B.
An application for an initial franchise for a cable
system shall contain, where applicable:
(1)
A description of the proposed franchise and service
area, office location, personnel and maintenance and a schedule of
construction of the cable system.
(2)
A resume of prior history of the applicant, including
the legal, technical and financial qualifications of the applicant
to construct, install and operate a cable system, to provide cable
services and to fulfill the Township's needs as determined by the
Township.
(3)
A list of the partners, general and limited, of the
applicant, if a partnership, or the percentage of stock owned or controlled
by each shareholder, if a corporation.
(4)
A list of officers, directors and managing employees
of the applicant, together with a description of the background of
each such person.
(5)
The names and addresses of any parent or subsidiary
of the applicant or any other business entity owning or controlling
the applicant in whole or in part, or owned or controlled in whole
or in part by the applicant.
(6)
A current financial statement of the applicant verified
by a CPA audit or otherwise certified to be true, complete and correct
to the reasonable satisfaction of the Township.
(7)
A proposed construction and service schedule.
(8)
Any additional information that the Township deems
applicable.
A.
Upon receipt of any application for an initial franchise,
the Township Manager shall prepare a report and make his recommendations
respecting such application to the Board of Commissioners. In addition
to consideration of an applicant's legal, technical and financial
qualifications, consideration will be given to the applicant's proposal
for services, needs of the Township and the effect, if any, on rights-of-way
and public property.
B.
A public hearing shall be set prior to any initial
franchise grant, at a time and date approved by the Board of Commissioners.
Within 30 days after the close of the hearing, the Board shall make
a decision based upon the evidence received at the hearing as to whether
or not the franchise(s) should be granted and, if granted, subject
to what conditions. The Board may decline to grant any franchise.
Any franchise granted shall be nonexclusive.
The Township reserves the right to grant, at any time, such additional
franchises for a cable system or any component thereof, as it deems
appropriate, subject to applicable state and federal law; provided,
however, that no franchise shall be granted on terms materially less
burdensome or more favorable than those in the franchise granted hereunder
pertaining to the area served; public, educational and governmental
access requirements; or franchise fees. This prohibition shall not
apply when the area in which the additional franchise is being sought
is not actually being served by any existing cable company holding
a franchise for the area.
A.
The Township may grant one or more franchises for
a service area. The Township may, in its sole discretion, limit the
number of franchises granted based upon, but not necessarily limited
to, the requirements of applicable law and specific local considerations,
such as:
(1)
The capacity of the public rights-of-way to accommodate
multiple-fiber and coaxial cables in addition to the cables, conduits
and pipes of the utility systems, such as electrical power, telephone,
gas and sewerage.
(2)
The impact on the community of having multiple franchises.
(3)
The disadvantages that may result from cable system
competition, such as the requirement for multiple pedestals on residents'
property and the disruption arising from numerous excavations of the
rights-of-way.
(4)
The financial capabilities of the applicant and its
guaranteed commitment to make necessary investments to erect, maintain
and operate the proposed system for the duration of the franchise
term.
B.
Each grantee awarded a franchise to serve the entire
Township shall offer service to all residences in the Township, in
accordance with construction and service schedules mutually agreed
upon between the Township and the grantee, and consistent with applicable
law.
C.
The Township may require that any new grantee be responsible
for its own underground trenching and the costs associated therewith
if, in the Township's opinion, the rights-of-way in any particular
area cannot feasibly and reasonably accommodate additional cables.
D.
Any additional franchise granted by the Township to
provide cable service in a part of the Township in which a franchise
has already been granted and where an existing grantee is providing
service shall require the new grantee to provide service throughout
its service area within a reasonable time and in a sequence which
does not discriminate against lower-income residents.
A.
A franchise granted hereunder shall be for a term
established in the franchise agreement.
B.
Franchise renewals shall be in accordance with applicable
law, including, but not necessarily limited to, the Cable Act. The
Township and the grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise.
A.
If, subject to the provisions of the Cable Act, a
renewal of a franchise is denied, the Township may purchase, to the
extent permitted by local law and upon payment to the grantee of the
cable system's fair market value as a going concern, exclusive of
any value allocated to the franchise itself, that portion of grantee's
cable system serving the Township.
B.
Pursuant to the Cable Act, if a franchise is revoked
for cause, the Township may, to the extent permitted by local law,
acquire that portion of the cable system serving the Township upon
payment of an equitable price.
Any franchise shall be valid within all the
territorial limits of the Township, and within any area added to the
Township during the term of the franchise, unless otherwise specified
in the franchise agreement.
A.
This article shall be construed in a manner consistent
with all applicable federal and state laws, including rules of regulatory
agencies.
B.
In the event that the state or federal government
discontinues preemption in any area of cable communications over which
it currently exercises jurisdiction in such manner as to expand rather
than limit municipal regulatory authority, the Township may, if it
so elects, adopt rules and regulations in these areas to the extent
permitted by law.
C.
This article shall apply to all cable franchises granted
or renewed after the effective date of this article. It shall further
apply to the extent permitted by applicable federal or state law to
all existing franchises granted prior to the effective date of this
article.
D.
Grantee's rights are subject to the police powers
of the Township to adopt and enforce ordinances necessary to the health,
safety and welfare of the public. The grantee shall comply with all
applicable general laws and ordinances enacted by the Township pursuant
to that power.
E.
The Township, may modify this article only to the
extent that its powers are expanded by applicable federal law or pursuant
to its police powers.
F.
The grantee shall not be relieved of its obligation
to comply with any of the provisions of this article or any franchise
granted pursuant to this article by reason of any failure of the Township
to enforce prompt compliance.
A.
The grantee shall not sell, transfer, lease, assign,
sublet or dispose of, in whole or in part, either by forced or involuntary
sale, or by ordinary sale, consolidation or otherwise, the franchise
and/or cable system or any of the rights or privileges granted by
the franchise, without the prior consent of the Township's Board of
Commissioners, which consent shall not be unreasonably denied or delayed
and shall be denied only upon a good faith finding by the Township
that the proposed transferee lacks the legal, technical or financial
qualifications to perform its obligations under the franchise agreement.
Any attempt to sell, transfer, lease, assign or otherwise dispose
of the franchise and/or cable system without the consent of the Board
of Commissioners shall be null and void. This provision shall not
apply to sales or leases of property or equipment in the normal course
of business. No consent from the Township shall be required for a
transfer in trust, mortgage or other instrument of hypothecation,
in whole or in part, to secure an indebtedness, or for a pro forma
transfer to a corporation, partnership or other entity controlling,
controlled by or under common control with the grantee.
B.
The following events shall be deemed to be a sale,
assignment or other transfer of the franchise and/or cable system
requiring compliance with this section: the sale, assignment or other
transfer of all or a majority of the grantee's assets; the sale, assignment
or other transfer of capital stock or partnership, membership or other
equity interests in the grantee by one or more of its existing shareholders,
partners, members or other equity owners so as to create a new controlling
interest in the grantee; the issuance of additional capital stock
or partnership, membership or other equity interest by the grantee
so as to create a new controlling interest in the grantee; and the
entry by the grantee into an agreement with respect to the management
or operation of the grantee and/or the system. The term "controlling
interest" as used herein means majority equity ownership of the grantee.
C.
In the case of any sale or transfer of ownership of
any franchise and/or cable system, the Township shall have 120 days
to act upon any request for approval of such sale or transfer that
contains or is accompanied by such information as is required in accordance
with Federal Communications Commission regulations, the requirements
of this article and such information required by the franchise agreement.
If the Township fails to render a final decision on the request within
120 days from receipt by the Township of all required information,
such request shall be deemed granted unless the requesting party and
the Township agree to an extension of time.
D.
The grantee shall notify the Township in writing of
any foreclosure or any other judicial sale of all or a substantial
part of the franchise property of the grantee or upon the termination
of any lease or interest covering all or a substantial part of said
franchise property. Such notification shall be considered by the Township
as notice that a change in control of ownership of the franchise has
taken place and the provisions under this section governing the consent
of the Township to such change in control of ownership shall apply.
E.
For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the Township may inquire into the qualifications of the prospective transferee or controlling party, and grantee shall assist the Township in any such inquiry. In seeking the Township's consent to any change of ownership or control, the grantee shall have the responsibility of ensuring that the transferee completes an application in form and substance reasonably satisfactory to the Township, which application shall include the information required under state and federal law as well as under Subsections A through H of § 140-19 of this article. An application in the form of FCC Form 394, plus such additional information as described in § 140-19A through H shall be submitted to the Township within a time period sufficient to allow the Township not less than 120 days for review and approval/disapproval. The transferee shall be required to establish that it possesses the legal, technical and financial qualifications to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If, after considering the legal, financial, character and technical qualities of the applicant and determining that they are satisfactory, the Township finds that such transfer is acceptable, the Township shall transfer and assign the rights and obligations of such franchise. The consent of the Township to such transfer shall not be unreasonably denied.
F.
Any financial institution having a pledge of the grantee
or its assets for the advancement of money for the construction and/or
operation of the franchise shall have the right to notify the Township
that it or its designee, satisfactory to the Township, shall take
control of and operate the cable system in the event of a grantee
default in its financial obligations. Further, said financial institution
shall also submit a plan for such operation within 30 days of assuming
such control that will ensure continued service and compliance with
all franchise requirements during the term the financial institution
exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year
unless extended by the Township in its discretion, and during said
period of time it shall have the right to petition the Township to
transfer the franchise to another grantee.
A.
The grantee shall design, construct and maintain the
cable system to have the capability to serve every dwelling unit,
including multiple-dwelling units, commercial establishments and government
buildings in the service area, subject to any line extension requirements
of the franchise agreement.
B.
After service has been established by activating trunk
and/or distribution cables for any part of the service area, the grantee
shall provide cable service to any requesting subscriber within that
service area within 30 days from the date of request, provided that
the grantee is able to secure all rights-of-way necessary to extend
service to such subscriber within such thirty-day period on reasonable
terms and conditions.
A.
Following the issuance and acceptance of a franchise,
the grantee shall pay to the Township a franchise fee in the amount
set forth in the franchise agreement.
B.
The Township, on an annual basis, shall be furnished
a statement within 60 days of the close of the calendar year, certified
by an officer of the grantee or audited by a Certified Public Accountant,
reflecting the total amounts of gross annual revenues and all payments
and computations for the previous calendar year. Upon 10 days prior
written notice, the Township shall have the right to conduct an independent
audit of the grantee's records, limited to the previous three full
calendar years, in accordance with generally accepted accounting principles.
If such audit indicates a franchise fee underpayment of 5% or more,
the grantee shall assume the costs of such an audit up to $4,000.
C.
Except as otherwise provided by law, no acceptance
of any payment by the Township shall be construed as a release or
as an accord and satisfaction of any claim the Township may have for
further or additional sums payable as a franchise fee under this article
or any franchise agreement or for the performance of any other obligation
of the grantee if the Township deems that the grantee withheld information
relating to or affecting the franchise fee.
D.
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 an annual rate equal to the
prime lending rate plus 1 1/2% during the period for which payment
was due.
E.
Franchise fee payments shall be made in accordance
with the schedule indicated in the franchise agreement.
A.
The grantee shall not construct any cable system facilities
until the grantee has secured the necessary permits from the Township
or other cognizant public agencies.
B.
In those areas of the Township where transmission
or distribution facilities of all the public utilities providing telephone
and electric power service are underground, the grantee likewise shall
construct, operate and maintain its transmission and distribution
facilities therein underground.
C.
In those areas of the Township where the grantee's
cables are located on the above-ground transmission or distribution
facilities of the public utility providing telephone or electric power
service, and in the event that the facilities of both such public
utilities subsequently are placed underground, then the grantee likewise
shall construct, operate and maintain its transmission and distribution
facilities underground, at the grantee's cost. Certain of the grantee's
equipment, such as pedestals, amplifiers and power supplies, which
normally are placed above-ground, may continue to remain in above-ground
closures.
D.
Any cable operator wishing to serve an area where
the trenches have been closed shall be responsible for its own trenching
and associated costs and shall repair all property to the condition
which existed prior to such trenching
E.
In the event that more than one franchise is awarded,
the Township reserves the right to limit the number of drop cables
and/or pedestals per residence, or to require that the drop cable(s)
and/or pedestals(s) be utilized only by the cable operator selected
by the resident to provide service. The Township may, under circumstances
and at locations where it deems it necessary for safety or aesthetic
concerns, require pedestals or other equipment to be located underground
or with enclosures suitable to the Township.
A.
The grantee shall construct, install, operate and
maintain its system in a manner consistent with all applicable laws,
ordinances, construction standards, governmental requirements, Federal
Communications Commission technical standards and any standards set
forth in its franchise agreement. In addition, the grantee shall provide
to the Township, upon request, a written report of the results of
the grantee's periodic proof of performance tests conducted pursuant
to Federal Communications Commission standards and guidelines.
B.
Repeated and verified failure to maintain specified
technical standards shall constitute a material franchise violation.
C.
All construction practices shall be in accordance
with all applicable provisions of the Occupational Safety and Health
Act of 1970, as amended, and as it may be amended from time to time,
as well as all other applicable local, state and federal laws and
regulations.
D.
All installation of electronic equipment shall be
installed in accordance with the provisions of the National Electrical
and Safety Code and National Electrical Code, as amended, and as may
from time to time be amended.
E.
Antennas and their supporting structures (towers)
shall be painted, lighted, erected and maintained in accordance with
all applicable rules and regulations of the Federal Aviation Administration
and all other applicable local, state and federal laws and regulations.
F.
All of the grantee's plant and equipment, including,
but not limited to, the antenna site, headend and distribution system,
towers, house connections, structures, poles, wire, coaxial cable,
fixtures and appurtenances shall be installed, located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated
in accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or interfere
with improvements the Township may deem appropriate to make or to
interfere in any manner with the rights of any property owner, or
to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
G.
The grantee shall at all times employ ordinary care
and shall install and maintain in use commonly accepted methods and
devices preventing failures and accidents which are likely to cause
damage or injury to the public.
Except as otherwise provided in the franchise
agreement, the grantee shall maintain a local office or offices to
provide the necessary facilities, equipment and personnel to comply
with the following consumer protection standards under normal operating
conditions:
A.
Customer service center.
(1)
The grantee agrees to maintain a regional customer
service center staffed 24 hours a day, seven days a week. Voice mail
and automated equipment alone do not fulfill this requirement. In
addition, the grantee agrees to maintain a local bill payment location
which will be open at least during normal business hours.
(2)
Under normal operating conditions, telephone answer
time by a customer representative, including wait time, shall not
exceed 30 seconds when 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.
(3)
The grantee will not be required to acquire equipment
or perform surveys to measure compliance with the telephone answering
standards above unless an historical record of complaints indicates
a clear failure to comply.
(4)
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time.
B.
Installations, outages and service calls. Under normal
operating conditions, each of the following standards will be met
no less than 95% of the time measured on a quarterly basis:
(1)
Standard installations will be performed within seven
business days after an order has been placed. Standard installations
are those that are located up to 125 feet from the existing distribution
system.
(2)
Under normal operating conditions, the grantee will
begin working on service interruptions promptly and in no event later
than 24 hours after the interruption becomes known. The grantee must
begin actions to correct other service problems the next business
day after notification of the service problem.
(3)
At the subscriber's request, the appointment window
alternatives for installations, service calls and other installation
activities will be either a specific time or, at maximum, a four-hour
time block during normal business hours. The grantee may schedule
service calls and other installation activities outside of normal
business hours for the express convenience of the customer.
(4)
If the grantee's representative is running late for
an appointment with a customer and will not be able to keep the appointment
as scheduled, the customer must be contacted. The appointment will
be rescheduled, as necessary, at a time which is convenient for the
customer.
(5)
Any grantee representative or subcontractor making
a service call to a customer's home or business to perform a service,
such as installation, repair or disconnection, must wear identifying
apparel and must carry identification clearly identifying such person
as a representative or subcontractor of the grantee.
C.
Communications between grantee and subscribers.
(1)
Notifications to subscribers.
(a)
The grantee shall provide written information
on each of the following areas at the time of installation of service,
at least annually to all subscribers, and at any time upon request:
[1]
Products and services offered.
[2]
Prices and options for programming services
and conditions of subscription to programming and other services.
[3]
Installation and service maintenance policies.
[4]
Instructions on how to use the cable service.
[5]
Channel positions.
[6]
Programming carried on the system.
[7]
Billing and complaint procedures, including
the address and telephone number of the Township's cable office.
(b)
Subscribers will be provided effective notification
in writing of any changes in rates, programming, services or channel
positions at least 30 days in advance of such changes if the change
is within the control of the grantee. The grantee's written notice
shall include a comparison of current and proposed rates and charges
and shall be included in each subscriber's bill. In addition, the
grantee shall notify subscribers 30 days in advance of any significant
changes in the other information required by the preceding paragraph.
In the event that the grantee becomes subject to effective competition
as defined by federal law, the Township may waive the notification
requirements of this paragraph in order to allow the grantee to respond
to competitive circumstances.
(2)
Compatibility information. In accordance with FCC
rules contained in 47 C.F.R. § 76.630(d), each grantee must
provide in writing a consumer information program on compatibility
matters. Such information must be provided at the time of installation
and at least annually to all subscribers, and at any time upon request.
The grantee may choose the time and means by which it complies with
this annual consumer information requirement. The information may
be included in one of the grantee's regular subscriber billings. The
consumer information program shall include the following information:
(a)
The grantee shall inform its subscribers that
some models of television receivers and videocassette recorders may
not be able to receive all of the channels offered by the cable system
when connected directly to the cable system. In conjunction with this
information, the grantee shall briefly explain the types of channel
compatibility problems that could occur if subscribers connected their
equipment directly to the cable system and offer suggestions for resolving
those problems. Such suggestions could include, for example, the use
of a cable system terminal device such as a set-top channel converter.
The grantee shall also indicate that channel compatibility problems
associated with reception of programming that is not scrambled or
encrypted programming could be resolved through use of simple converter
devices without descrambling or decryption capability that can be
obtained from either the grantee or a third party retail vendor.
(b)
In cases where service is received through a
cable system terminal device, the grantee shall indicate that subscribers
may not be able to use special features and functions of their television
receivers and videocassette recorders, including features that allow
the subscriber to view a program on one channel while simultaneously
recording a program on another channel, record two or more consecutive
programs that appear on different channels and use advanced picture
generation and display features such as channel review and other functions
that necessitate channel selection by the consumer device.
(c)
In cases where the grantee offers remote control
capability with cable system terminal devices and other customer premises
equipment that is provided to subscribers, it shall advise subscribers
that remote control units that are compatible with that equipment
may be obtained from other sources, such as retail outlets. The grantee
shall also provide a representative list of the models of remote control
units currently available from retailers that are compatible with
the customer premises equipment they employ. The grantee must make
a good faith effort in compiling this list and will not be liable
for inadvertent omissions. This list shall be current as of no more
than six months before the date the consumer education program is
distributed to subscribers. The grantee must encourage subscribers
to contact the grantee to inquire about whether a particular remote
control unit the subscriber might be considering for purchase would
be compatible with the subscriber's customer premises equipment.
(d)
In cases where the grantee offers inside wire
maintenance or another service program, the customer information program
shall describe such program, including cost information.
(3)
Billing.
(a)
Bills will be clear, concise and understandable.
Bills must be fully itemized, with itemizations including, but not
limited to, basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates and credits. The grantee's
telephone number shall be clearly displayed on bills.
(b)
In case of a billing dispute, the grantee must
respond to a written complaint from a subscriber within 30 days.
(4)
Refunds. Refund checks will be issued promptly, but
no later than 30 days from resolution of the request.
(5)
Credits. Credits for service will be issued no later
than 30 days from resolution of the request.
(6)
Complaints. The grantee shall submit a copy of all
of its written responses to written subscriber complaints that the
Township receives to the Township within 30 days of receipt of such
complaint from the Township.
(7)
Nonpayment. A grantee must send at least two notices
or statements notifying a subscriber of nonpayment before the grantee
may have its representative telephone or otherwise attempt to personally
contact the subscriber. The grantee must provide a subscriber with
a forty-five-day grace period before terminating service due to nonpayment.
The forty-five-day grace period begins running on the day the bill
is due for payment.
The Township may require, as part of a franchise
or franchise renewal, that a grantee designate channel capacity for
public, educational or governmental use. The Township may require
a grantee to provide funding, facilities and equipment for such public,
educational or government access.
The Township may require, as part of a franchise or franchise renewal, that a grantee provide an institutional network, as defined in § 140-16 of this article, for governmental and educational use.
The Township reserve the right to regulate rates
for basic cable service, and any other services offered over the cable
system, to the extent permitted by federal or state law. The grantee
and the Township shall be subject to the rate regulation provisions
promulgated by the Federal Communications Commission at 47 CFR, Part
76.900, subpart N.
The grantee shall have the authority to trim
trees, in accordance with all applicable utility, ordinance and easement
restrictions, upon and hanging over 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 grantee.
The grantee shall notify the Township Department of Public Works prior
to trimming any trees in the rights-of-way. Township representatives
shall have authority to supervise and approve all trimming of trees
conducted by the grantee.
The Township shall have the right to install
and maintain, free of charge, upon the poles and within the underground
conduits of the grantee, any wires and fixtures desired by the Township
to the extent that such installation and maintenance does not interfere
with existing operations of the grantee.
A.
The grantee, under any franchise operated pursuant
to this article, shall agree to indemnify, hold harmless, release
and defend the Township, its officers, boards, commissions, agents
and employees from and against any and all lawsuits, claims, causes
of action, actions, liability, demands, damages, disability, losses
or expenses, including reasonable attorneys' fees and costs or liabilities
of any nature that may be asserted by any person resulting or in any
manner arising from the action or inaction of the grantee in constructing,
operating, maintaining, repairing or removing the system, or in carrying
on the grantee's business or operations in the Township. This indemnity
shall apply, without limitation, to any action or cause of action
for invasion of privacy, defamation, antitrust, errors and omissions,
theft, fire, violation or infringement of any copyright, trademark,
trade names, service mark or patent or any other right of any person,
firm or corporation, whether or not any act or omission complained
of is authorized, allowed or prohibited by this article or any franchise
agreement, but shall not include any claim or action arising out of
the actions or omissions of Township officers, employees or agents
or related to any Township programming or other access programming
for which the grantee is not legally responsible.
B.
The Township shall promptly notify the grantee of
any claims subject to indemnification by the grantee and shall cooperate
with all reasonable requests by the grantee for information, documents,
testimony or other assistance appropriate to a resolution of such
claims. The grantee shall have full responsibility for and control
of any action or undertaking directed at the resolution of such claims.
Each grantee shall provide insurance as specified
in its franchise agreement.
Each grantee shall establish and provide to
the Township a security fund, in an amount specified in the franchise
agreement, as security for the performance of all material provisions
of the franchise agreement.
A.
The grantee shall at all times maintain:
(1)
A full and complete set of plans, records and as-built
maps showing the location of the cable system installed or in use
in the Township, exclusive of subscriber service drops and equipment
provided in subscribers' homes.
(2)
If requested by the Township, a summary of service
calls, identifying the number, general nature and disposition of such
calls, on a monthly basis. A summary of such service calls shall be
submitted to the Township within 30 days following its request in
a form reasonably acceptable to the Township.
B.
Upon 48 hours' written notice, and during normal business
hours, the grantee shall permit examination by any duly authorized
representative of the Township of all franchise property and facilities,
together with any appurtenant property and facilities of the grantee
situated within or without the Township, and all records relating
to the franchise, provided that they are necessary to enable the Township
to carry out its regulatory responsibilities under local, state and
federal law, this article and the franchise agreement. Such records
include all books, records, maps, plans, financial statements, service
complaint logs, performance test results, records of request for service
and other like materials of the grantee. The grantee shall have the
right to be present at any such examination.
C.
If any of the records described in the previous subsection
are proprietary in nature or must be kept confidential by federal,
state or local law, upon proper request by the grantee, such information
obtained during such an inspection shall be treated as confidential,
making it available only to those persons who must have access to
perform their duties on behalf of the Township, including, but not
limited to, the Department of Finance, the Township Solicitor and
the Board of Commissioners. To the extent any federal requirement
for privacy applies to the information to be submitted, said law shall
control.
D.
Copies of all petitions, applications, communications
and reports submitted by the grantee or on behalf of or relating to
the grantee to the Federal Communications Commission, the Securities
and Exchange Commission or any other federal or state regulatory commission
or agency having jurisdiction with respect to any matters affecting
the cable system authorized pursuant to this article and any franchise,
shall be made available to the Township upon request. Copies of responses
from the regulatory agencies to the grantee shall likewise be furnished
to the Township upon request.
A.
The grantee shall submit a written end-of-the-year
report to the Township upon request with respect to the preceding
calendar year containing the following information:
(1)
A summary of the previous year's (or in the case of
the initial reporting year, the initial year's) activities in the
development of the cable system, including, but not limited to, services
begun or discontinued during the reporting year.
(2)
A list of the grantee's officers, members of its board
of directors and other principals of the grantee.
(3)
A list of stockholders or other equity investors holding
5% or more of the voting interest in the grantee.
(4)
Information as to the number of subscribers and the
number of basic and pay service subscribers.
B.
The Township, including its agents and representatives,
shall have the authority, during normal business hours, to arrange
for and conduct an inspection of documents pertaining to, referenced
in or used to create the annual reports. The Township shall give the
grantee 24 hours' written notice of the inspection request. If the
requested information is proprietary in nature or must be kept confidential
by state, federal or local law, upon proper request by the grantee,
such information obtained during such an inspection shall be treated
as confidential, making it available only to those persons who must
have access to perform their duties on behalf of the Township, including,
but not limited to, the Department of Finance, the Township Solicitor
and the Board of Commissioners. To the extent any federal requirement
for privacy applies to the information to be submitted, said law shall
control.
C.
All reports and records required under this article
shall be furnished at the sole expense of the grantee, except as otherwise
provided in this article or the franchise agreement.
The Township may request evaluation and review
sessions, as specified in each franchise agreement.
A.
There shall be a citizen's committee entitled the
Cable Television Evaluation and Advisory Committee (Advisory Committee).
The responsibilities of the Advisory Committee include, but are not
limited to, the following:
(1)
Monitor and advise the Township Board of Commissioners
and Township administration on the performance of each grantee under
the provisions of this article, a franchise agreement and all applicable
federal and state laws and regulations.
(2)
Serve as an advisory body with respect to the public,
educational and government access channels and any institutional network
programming and scheduling for the use of such. Encourage the use
of the public access channels among the widest range of institutions,
groups and individuals within the Township.
(3)
Advise the Township of objectives to be obtained in
the Township's cable system based upon its continued evaluation of
the existing franchise(s), cable technology, performance of grantee(s)
and the future cable-related needs and interests of the community.
(4)
Prepare an annual report to the Board of Commissioners
on the activities of the Advisory Committee, the performance of each
grantee, complaints filed and the resolution and outcome of such complaints.
(5)
Cooperate with the Township and each grantee in fulfilling
its responsibilities herein.
(6)
Develop a process for handling citizen complaints,
including, but not limited to:
(a)
Receiving, reviewing and investigating complaints.
(b)
Conducting hearings to resolve complaints.
(c)
Initiating franchise violation proceedings,
including recommendations to the Board regarding the imposition of
liquidated damages, as described in the grantee's franchise agreement.
(d)
Appeals to the Township Hearing Officer.
B.
The composition and terms of Advisory Committee membership
shall be as follows:
(1)
The Advisory Committee shall be composed of eight
residents of the Township who shall be appointed by the Board of Commissioners
and who shall serve without compensation.
[Amended 1-19-2000 by Ord. No. 3555]
(2)
On the expiration of the term of any Advisory Committee
member, a successor shall be appointed by the Board to serve for a
term of three years.
(3)
A vacancy in the office of an Advisory Committee member
shall be filled by the Board for the unexpired term.
(4)
The members of the Advisory Committee shall by majority
vote elect a Chairperson for a one-year term each year.
C.
Members of the Advisory Committee must be residents
of the Township and should be representative of a cross section of
the varied interests present in the Township. They shall not be directors,
officers or employees of a grantee, a parent or subsidiary corporation
of a grantee or in firms or corporations which do business with a
grantee. Members of the Advisory Committee must have a personal interest
in cable television or in the fields of information, communications
or entertainment. Knowledge of cable television engineering is not
necessary.
D.
The grantee's general manager or his/her designated
representative is expected to attend all regularly scheduled meetings
of the Advisory Committee.
A.
If the grantee fails to perform in a timely manner
any material obligation required by this article or a franchise granted
hereunder, following notice from the Township and an opportunity to
cure such nonperformance, the Township may act to remedy such violation
in accordance with the following procedures:
(1)
The Township shall notify the grantee of any alleged
material violation in writing, by personal delivery or registered
or certified mail, and demand correction within a reasonable time,
which shall not be less than 10 days in the case of the failure of
the grantee to pay any sum or other amount due the Township under
this article or the grantee's franchise and 30 days in all other cases.
(2)
If the grantee fails either to correct the violation
within the time prescribed or to commence correction of the violation
within the time prescribed and thereafter diligently pursue correction
of such violation, the Township shall then give written notice of
not less than 20 days of a public hearing to be held before the Board
of Commissioners. Said notice shall specify the violations alleged
to have occurred.
(3)
At the public hearing, the Board shall hear and consider
relevant evidence and thereafter render findings and its decision.
In the event that the Board finds that a material violation exists
and that the grantee has not corrected the same in a satisfactory
manner or has not diligently commenced correction of such violation
after notice thereof from the Township and is not diligently proceeding
to fully remedy such violation, the Board may revoke the franchise
or impose any other penalty permitted by the franchise agreement.
B.
The grantee may appeal a declaration of default or
revocation to arbitration within 30 days of receiving default notification.
Arbitration shall be optional. Any arbitration held pursuant to this
franchise shall be conducted in accordance with the rules of the American
Arbitration Association. Parties shall appoint an arbitrator within
15 days of arbitration. Each party shall be afforded due process rights,
including the right to introduce evidence and call witnesses. The
cost of arbitration, exclusive of attorneys' fees, shall be borne
equally by the parties.
In the event that the grantee's performance
of any of the terms, conditions or obligations required by this article
or a franchise granted hereunder is prevented by a cause or event
not within the grantee's control, such inability to perform shall
be deemed excused and no penalties or sanctions shall be imposed as
a result thereof. For the purpose of this section, causes or events
not within the control of the grantee shall include without limitation
acts of God, strikes, sabotage, riots or civil disturbances, acts
or orders of a governmental agency or court, failure or loss of utilities,
utility facilities, explosions, acts of public enemies, significant
regulatory or legislative developments and natural disasters such
as floods, earthquakes, landslides and fires. Within 30 days of the
grantee's discovery of an event causing delay or failure, the grantee
shall provide the Township written notice describing the cause and
estimating the period of time in which such delay or nonperformance
will be cured.
A.
In the event that the use of any property of the grantee
within the franchise area or a portion thereof is discontinued for
a continuous period of 12 months, the grantee shall be deemed to have
abandoned that franchise property.
B.
The Township, upon such terms as the Township may
impose, may give the grantee permission to abandon, without removing,
any system facility or equipment laid, directly constructed, operated
or maintained under the franchise. Unless such permission is granted
or unless otherwise provided in this article, the grantee shall remove
all abandoned above-ground facilities and equipment upon receipt of
written notice from the Township and shall restore any affected street
to its former state at the time such facilities and equipment were
installed, so as not to impair its usefulness. 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 all public
ways and places in as good condition as that prevailing prior to such
removal without materially interfering with any electrical or telephone
cable or other utility wires, poles or attachments. The Township shall
have the right to inspect and approve the condition of the public
ways, public places, cables, wires, attachments and poles prior to
and after removal. The liability, indemnity and insurance provisions
of this article and any security fund provided in the franchise 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 section.
C.
Upon abandonment of any franchise property in place,
the grantee, if required by the Township, shall submit to the Township
an instrument, satisfactory in form to the Township, transferring
to the Township the ownership of the franchise property abandoned.
D.
At the expiration of the term for which the franchise
is granted, or upon its revocation or earlier expiration, as provided
for herein, in any such case without renewal, extension or transfer,
the Township shall have the right to require the grantee to remove,
at its own expense, all above-ground portions of the cable system
from all streets and public ways within the Township within a reasonable
period of time, which shall not be less than 180 days.
E.
Notwithstanding anything to the contrary set forth
in this article, the grantee may abandon any underground franchise
property in place so long as it does not materially interfere with
the use of the street or public rights-of-way in which such property
is located or with the use thereof by any public utility or other
cable grantee.
Upon either expiration or revocation of the
franchise, the Township shall have the discretion to require the grantee
to continue to operate the cable system for an extended period of
time not to exceed six months from the date of such expiration or
revocation. The grantee shall continue to operate the system under
the terms and conditions of this article and the franchise and to
provide the regular subscriber service and any and all of the services
that may be provided at that time.
A.
A franchise granted hereunder shall, at the option
of the Township, cease and terminate 120 days after 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 other 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 article and the franchise granted
pursuant hereto, and the receivership or trustees within said 120
days shall have remedied all the faults under the franchise or provided
a plan for the remedy of such faults which is satisfactory to the
Township; 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 granted.
B.
In the case of a foreclosure or other judicial sale
of the franchise property, or any material part thereof, the Township
may serve notice of termination upon grantee and the successful bidder
at such sale, in which event the franchise granted and all rights
and privileges of the grantee hereunder shall cease and terminate
30 days after service of such notice, unless the Township shall have
approved the transfer of the franchise, as and in the manner that
this article provides; and such successful bidder shall have covenanted
and agreed with the Township to assume and be bound by all terms and
conditions of the franchise.
A.
In addition to any rights specifically reserved to
the Township by this article, the Township reserves to itself every
right and power which is required to be reserved by a provision of
any ordinance or under the franchise.
B.
The Township shall have the right to waive any provision
of the franchise, except those required by federal or state regulation,
if the Township determines that it is in the public interest to do
so and that the enforcement of such provision will impose an undue
hardship on the grantee or the subscribers. To be effective, such
waiver shall be evidenced by a statement in writing signed by a duly
authorized representative of the Township. Waiver of any provision
in one instance shall not be deemed a waiver of such provision subsequent
to such instance nor be deemed a waiver of any other provision of
the franchise unless the statement so recites.
A.
The grantee shall not deny service, deny access or
otherwise discriminate against subscribers, channel users or general
citizens on the basis of race, color, religion, national origin, age,
gender or sexual preference. The grantee shall comply at all times
with all other applicable federal, state and local laws and regulations
relating to nondiscrimination.
B.
The grantee shall adhere to the applicable equal employment
opportunity requirements of federal, state and local regulations,
as now written or as amended from time to time.
C.
Neither the grantee nor any person, agency or entity
shall, without the subscriber's consent, tap or arrange for the tapping
of any cable, line, signal input device or subscriber outlet or receiver
for any purpose except routine maintenance of the system, defection
of unauthorized service, polling with audience participating or conducting
audience viewing surveys to support advertising research regarding
viewers where individual viewing behavior cannot be identified.
D.
In the conduct of providing its services or in pursuit
of any collateral commercial enterprise resulting therefrom, the grantee
shall take reasonable steps to prevent the invasion of a subscribers'
or general citizen's right of privacy or other personal rights through
the use of the system as such rights are delineated or defined by
applicable law. The grantee shall not, without lawful court order
or other applicable valid legal authority, utilize the system's interactive
two-way equipment or capability for unauthorized personal surveillance
of any subscriber or general citizen.
E.
No cable line, wire amplifier, converter or other
piece of equipment owned by the grantee shall be installed by the
grantee in a subscriber's premises, other than in appropriate easements,
without first securing any required consent. If a subscriber requests
service, permission to install upon the subscriber's property shall
be presumed. Where a property owner or his predecessor has granted
an easement, including a public utility easement or a servitude to
another and the servitude by its terms is compatible with a use such
as grantee's intended use, the grantee shall have access to the easement
for the installation of cable television equipment as provided for
under federal, state and local law.
In the event of a conflict between any provision
of this article and a franchise agreement entered pursuant to it,
the provisions of this article shall control, except as may be specifically
otherwise provided in the franchise agreement.
If any provision of this article is held by
any court or federal or state agency of competent jurisdiction to
be invalid as conflicting with any federal or state law, rule or regulation
now or hereafter in effect, or is held by such court or agency to
be modified in any way in order to conform to the requirements of
any such law, rule or regulation, such provision shall be considered
a separate, distinct and independent part of this article, and such
holding shall not affect the validity and enforceability of all other
provisions hereof. In the event that such law, rule or regulation
is subsequently repealed, rescinded, amended or otherwise changed,
so that the provision hereof which had been held invalid or modified
is no longer in conflict with such law, rule or regulation, said provision
shall thereupon return to full force and effect and shall thereafter
be binding on the Township and the grantee, provided that the Township
shall give the grantee 30 days' written notice of such change before
requiring compliance with said provision or such longer period of
time as may be reasonably required for the grantee to comply with
such provision.