[HISTORY: Adopted by the Board of Supervisors
of the Township of Bern 6-2-1980 by Ord. No. 55. Amendments
noted where applicable.]
This chapter shall be known and may be cited
as the "Cable Television Franchise Ordinance."
[Amended 12-13-1999 by Ord. No. 183-1999]
For the purposes of this chapter, the following
terms, phrases, words and their derivations shall have the meanings
given herein. When not inconsistent with the context, words used in
the present tense include the future, words in the plural number include
the singular number, and words in the singular number include the
plural number. The word "shall" is always mandatory and not merely
directory. Any terms that are not otherwise defined in this chapter
are intended to have the meaning ascribed to them by the federal statute
known as the "Communications Act of 1996," as the same may be further
amended hereafter.
PERSON
Any person, firm, partnership, association, corporation,
company or organization of any kind.
QUALIFYING COMPANY
Any person or entity which is granted a nonexclusive franchise
pursuant to the terms of this chapter.
The Board of Supervisors is hereby authorized
to grant the right and privilege to qualifying companies to construct,
erect, operate and maintain in, upon, along, across, above, over and
under the streets, alleys, public ways and public places now laid
out or dedicated, and all extensions thereof and additions thereto,
in the township, poles, wires, cables, underground conduits, manholes
and other television conductors and fixtures necessary for the maintenance
and operation in the borough of a community television system and
for closed circuit cable services.
A. Nonexclusive grant. No right to use and occupy said
street, alleys, public ways and places granted pursuant to this chapter
shall be deemed to be exclusive, and the township reserves the right
to grant similar rights to any other qualifying company at any time.
B. State Highway Department permits. Grants by the township
pursuant to this chapter are subject to the provisions of the Township
Code of the Commonwealth of Pennsylvania and more particularly to
the provisions of the ordinances of the township which require that
before any conduits, pipes or other structures be erected upon or
in any portion of a township street, a permit must be obtained from
the township. Where a state highway is involved, such construction
shall be made under the conditions, restrictions and regulations as
may be prescribed in the permit to be obtained from the State Highway
Department.
C. Grant of prescribed rights. Grants pursuant to this
chapter further shall be subject to the qualifying companies obtaining
any and all necessary easements, rights-of-way and other grants from
any and all property owners who may be affected by the construction,
operation and maintenance of the aforesaid conductors and fixtures.
D. Qualifying companies are prohibited from directly
or indirectly engaging in the sale, service, rental, leasing or repair
of television receivers, parts or related accessories.
Qualifying companies shall, at all times during
the life of a franchise grantee pursuant hereto, be subject to all
lawful exercise of the police power by the township and to such reasonable
regulations, pursuant to the exercise of such police power, as the
township, the County of Berks, the Commonwealth of Pennsylvania or
the United States of America or any regulatory commissions of the
same, shall hereafter by resolution, ordinances, statute or regulation
provide.
A. Interference. If there is any interference, intentional,
unintentional or otherwise, on any television set, radio or other
electronic device not on the conductors or fixtures of the qualifying
company caused by the conductors or fixtures of the qualifying company,
the qualifying company shall immediately, at its own cost and expense,
eliminate such interference. If such interference cannot be eliminated
within 48 hours, the township shall have the power to suspend, by
direction of the Board of Supervisors or its designee and without
hearing, the operation of the qualifying company within the township
until such interference is eliminated.
B. Building permits. In addition, the qualifying company
shall apply for and take out any and all building permits required
by the township for any construction to be undertaken by said qualifying
company.
It is expressly understood and agreed by and
between any qualifying company and the township that the qualifying
company shall save the township harmless from all loss sustained by
the township on account of any suit, judgment, execution, claim or
demand whatsoever, resulting from the operations of the qualifying
company in the construction, operation or maintenance of its television
system in the township. The township shall notify the qualifying company's
representative in the township within 10 days after the presentation
of any claim or demand, either by suit or otherwise, made against
the township on account of any damages or losses as aforesaid resulting
from the operations of the qualifying company. The qualifying company
shall furnish to the township, prior to the grant of a franchise hereunder,
evidence in writing that the qualifying company has in force and will
maintain in force during the term of any franchise granted pursuant
to this chapter, public liability insurance of not less than $500,000
for any one person and $1,000,000 for any one accident and property
damage insurance of not less than $500,000 duly issued by an insurance
company or insurance companies authorized to do business in this commonwealth.
The qualifying company shall have the authority
to promulgate such rules, regulations, terms and conditions governing
the conduct of its business as shall be reasonably necessary to enable
the qualifying company to exercise its rights and perform its obligations
under this franchise and to assure an uninterrupted service to each
and all of its customers; provided, however, that such rules, regulations,
terms and conditions shall not be in conflict with the provisions
hereof, additional regulations or ordinances of the Township of Bern,
the laws of the State of Pennsylvania or the laws of the United States
of America.
A. Use. All transmission and distribution structures,
lines and equipment erected by the qualifying company within the township
shall be so located as to cause minimum interference with the proper
use of streets, alleys and other public ways and places, and to cause
minimum interference with the rights of reasonable convenience of
property owners who adjoin any of said streets, alleys or other public
ways and places.
B. Restoration. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the qualifying company shall,
at its own cost and expense, and in a manner approved by the Township
Engineer, replace and restore all paving, sidewalk, driveway or surface
of any street or alley disturbed, in as good condition as before said
work was commenced. Said restoration shall also be subject to the
ordinances of the Township of Bern and the rules and regulations of
the State Highway Department, as appropriate.
C. Relocation. In the event that at any time during the
period of any franchise granted pursuant to this chapter, the township
shall lawfully elect to alter or change the grade of any street, alley
or other public way, the qualifying company upon reasonable notice
by the township, shall remove, relay and relocate its poles, wires,
cables, underground conduits, manholes and other television fixtures
at its own expense.
D. Placement of fixtures. The qualifying company, insofar
as it is reasonably possible to do so, shall locate its wires, cables,
conduits and other television conductors and fixtures on existing
utility poles of either the electric or the telephone company. The
qualifying company shall not place poles or other fixtures where the
same will interfere with any gas, electric or telephone fixture, water
hydrant or main and all such poles or other fixtures placed in any
street shall be placed at the outer edge of the sidewalk and inside
the curbline, and those placed in alleys shall be placed close to
the line of the lot abutting on said alley and then in such a manner
as not to interfere with the usual travel on said streets, alleys
and public ways.
E. Temporary removal of wire for building moving. The
qualifying company shall, at the request of any person holding a building
moving permit issued by the township, temporarily raise or lower its
wires to permit the moving of buildings. The expense of such temporary
removal, raising or lowering of wires shall be paid by the person
requesting the same and the qualifying company shall have the authority
to require such payment in advance. The qualifying company shall be
given not less than 48 hours advance notice to arrange for such temporary
wire changes.
F. Tree trimming. The qualifying company shall have the
authority to the same extent that the township has such authority,
to trim trees upon and overhanging streets, alleys, sidewalks and
public places of the township so as to prevent the branches of such
trees from coming in contact with the wires and cables of the qualifying
company.
All franchises and privileges granted pursuant
to the terms of this chapter shall be unassignable unless such assignment
has been approved by township, by resolution, at a duly convened meeting
of the Township Board of Supervisors.
A. Township rules. The right is hereby reserved to the
township to adopt by resolution, in addition to the provisions herein
contained and in existing applicable ordinances, such additional regulations
as it shall find necessary in the exercise of police power, provided
that such regulations shall be reasonable and not in conflict with
the rights herein granted, and shall not be in conflict with the laws
of the State of Pennsylvania.
B. Use of system by township. The township shall have
the right, during the life of this franchise, free of charge, where
aerial construction exists, of maintaining upon the poles of the qualifying
company within the township limits wire and pole fixtures necessary
for a police and fire alarm system. Such wires and fixtures to be
constructed and maintained to the satisfaction of the qualifying company
and in accordance with its specification.
C. Inspection. The township shall have the right to inspect
all construction or installation work during such construction or
installation or at any time after completion thereof, in order to
ensure compliance with the provisions of this chapter and all other
governing ordinances.
D. Existing antennas. The qualifying company may not
require as a condition precedent to the connection of a user to the
community television system, the removal by said user of existing
interior or exterior television antennas and related facilities owned
by said user.
E. Service. Qualifying companies shall install a system
which will provide a signal strength of not less than six decibels
(or 500 microvolts) at the point of connection of each television
receiver connected to said system. Said companies shall provide service
to all residents of the township who request the same.
[Amended 12-13-1999 by Ord. No. 183-1999]
A. Any qualifying company granted a franchise permit
pursuant to the terms of this chapter shall pay to the township for
the privilege of operating its community television system under the
franchise the sum of 5% of the monthly gross revenues derived from operation of the cable system collected each
month payable annually for as long as the qualifying company operates
the system under such franchise. "Gross revenues" include, but are
not limited to, all revenues derived from the cable system operated
by such company within the township, including:
(1) Subscriber fees for basic cable service, cable programming
service, premium, pay-per-view or any other video programming service;
(2) Subscriber fees for any other programming service
(including cable radio service);
(3) The rental or sale of converters, remote control devices
or other equipment related to cable service (including cable radio
service);
(4) Program guides, including advertising revenues;
(6) Home shopping channels; and
(7) Any other revenue derived, either directly of indirectly,
from the operation of the cable system to provide cable service.
B. Each annual payment shall be accompanied by a written
report to the township in a form satisfactory to the township containing
an accurate statement in summary form, as well as in such detail as
the township may require, demonstrating the qualifying company's calculation
of gross revenues and computation of the franchise fee payment amount.
Such reports shall be verified by an officer of the qualifying company
as to accuracy and completeness.
[Amended 12-13-1999 by Ord. No. 183-1999]
The qualifying company shall maintain records
of gross revenues derived from the cable system and shall make such
records available to the township during its duly designated agents
or officers during regular business hours at the office of the qualifying
company upon written request from the township.
Franchises issued pursuant to the terms of this
chapter shall be issued for the term of 10 years; provided, however,
that such franchise may be renewed for successive ten-year terms upon
approval by the Board of Supervisors after application by the qualifying
company, and provided that the qualifying company complies in all
respects with the terms hereof and maintains a financial condition
satisfactory to the township.
All applicants for franchise permits shall submit
to the township a statement containing the following, together with
an application fee of $50:
A. The name and address of applicant.
B. Evidence of financial condition of the applicant and,
if the applicant is a corporation or partnership, the names of the
principal stockholders or partners, whichever is applicable. A financial
statement of the person shall be submitted and shall be certified
by a certified public accountant.
C. Description of the area to be covered by the franchise.
D. Schedule of proposed rates to be charged by the applicant
for all services to be rendered with the township.
E. Such application shall be made upon forms to be supplied
by the township. The township reserves the right to request such other
information as it may deem necessary. Upon receipt of the above information,
together with such other information as is requested by the township,
the Board of Supervisors shall determine whether or not it is in the
best interest of the township to grant a franchise permit to the applicant.
If the franchise permit is granted to the applicant, the applicant
shall commence construction of the facilities and shall exercise its
rights under the franchise within six months of the grant of the franchise.
Rates and installation fees charged by the qualifying
company for service hereunder shall be fair and reasonable and designed
to meet all necessary costs of the service, including a fair rate
of return on net valuation of its properties devoted thereto under
efficient and economical management. Qualifying companies agree that
they shall be subject to all authority now or hereafter possessed
by the township or any other regulatory body having competent jurisdiction
to fix just, reasonable and compensatory rates and installation fees.
The qualifying company shall initially charge the rates and installation
fees shown on the schedule filed with the application for a franchise,
which rates and installation fees shall be reviewed and approved by
the Board of Supervisors prior to the issuance of the franchise. There
shall be no increases in subscriber rates and installation fees except
upon the approval of the Board of Supervisors pursuant to public proceedings
affording due process. In the event of the failure of the Board of
Supervisors to approve the application for increase it shall be referred
to a Board of Arbitrators composed of three members, one of whom shall
be selected by the township, one of whom shall be selected by the
qualifying company and the third member shall be selected by the aforementioned
designees. The Board of Arbitrators, pursuant to public proceedings
affording due process, shall render a decision either approving or
disapproving the proposed change of rates and installation fees within
30 days after the date of the appointment of the last member of said
board and such decision shall be binding upon the township and the
qualifying company. Appointments to said Board of Arbitrators by the
township and by the qualifying company shall be made within 15 days
after action of the township disapproving the proposed rate and installation
fee change.
Upon revocation of the franchise of a qualifying
company by the township or at the end of the term of a franchise of
a qualifying company, the qualifying company shall remove all of its
equipment and other facilities from the township within 90 days of
the notice of revocation or the end of the term.
A. Throughout the term of its franchise, the qualifying
company shall maintain all parts of the system in good, working condition.
However, realizing that service interruptions may occur, the township
and the qualifying company deem it necessary to establish a cooperative,
coordinated procedure for the resolution of subscriber complaints.
The township shall appoint a Complaint Officer who shall be responsible
for assuring that all complaints are satisfactorily and promptly resolved
through the office of the qualifying company required to be established
under this chapter.
B. The procedure for reporting service problems and the
responsibilities of township and qualifying company in this regard
shall be as follows:
(1) As to the qualifying company. Upon finding cable service
problems, the subscriber shall report the same to the qualifying company
by communicating with its local business office required to be established
under this chapter and action shall be taken as provided in this chapter.
In this connection, the qualifying company shall keep a record in
its offices of every complaint received, together with a memorandum
indicating the manner of disposition thereof. Said records shall be
kept for two calendar years after the date of disposition of the matter
reflected therein. Said records shall be available for review or inspection
by the township, the Complaint Officer or any other designee of the
Board of Supervisors during regular business hours. At least one time
each calendar year, qualifying company shall send to all of its current
subscribers a complaint form, setting forth the procedure for reporting
a complaint and indicating that any complaint not promptly and properly
resolved may be registered with the Township Complaint Officer. Said
complaint form shall be given to each subscriber at the time of initial
connection to the system of qualifying company.
(2) As to the township. The Township Complaint Officer
shall conduct investigations of unresolved complaints in a manner
he deems necessary in order to effectuate resolution thereof. He shall
maintain records of all complaints and the disposition thereof in
the office of the township and the same shall not be destroyed or
disposed of for a period of two years following resolution of the
matter about which a complaint was received. Whenever the Complaint
Officer believes that the company is not providing proper service,
the Complaint Officer shall bring this matter to the attention of
the Board of Supervisors and an appropriate conference with qualifying
company shall be convened in order to effectuate resolution.
[Adopted 3-5-2002 by Ord. No. 195-2002]
Any person who violates or permits a violation
of this chapter, upon being found liable therefor in a civil enforcement
proceeding, shall pay a fine of not more than $600, plus all court
costs, including reasonable attorney's fees, incurred by the township
in the enforcement of this chapter. No judgment shall be imposed until
the date of the determination of the violation by the District Justice
and/or Court. If the defendant neither pays nor timely appeals the
judgment, the township may enforce the judgment pursuant to the applicable
rules of civil procedure. Each day a violation exists shall constitute
a separate offense. Further, the appropriate officers or agents of
the township are hereby authorized to seek equitable relief, including
injunction, to enforce compliance herewith.
[Added 12-13-1999 by Ord. No. 183-1999]
In the event that at any time that this chapter is in effect, the township is authorized by applicable law to collect an amount in excess of 5% of gross revenues, then the franchise fee specified in §
66-10, as amended, shall increase to the maximum percentage of gross revenues that is permitted by law if the qualifying company receives a request in writing from the township to increase the franchise fee.