[HISTORY: Adopted by the Board of Supervisors of the Township of
Hanover at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
Amendments noted where applicable.]
This chapter may be known and cited as the "Cable Ordinance of the Township
of Hanover, Northampton County, Pennsylvania, as amended."
A.
This chapter shall be construed in light of applicable
commonwealth and federal regulations governing the awarding, construction,
operation, maintenance and renewal of a cable television system.
B.
Wherever permissible, this chapter shall be construed
with as much flexibility as possible, so that the Township might be able to
accomplish its goals of protecting the health, safety and welfare of the citizenry
with respect to the awarding, construction, operation, maintenance and renewal
of cable television systems.
In this chapter, unless the context otherwise requires, the following
terms shall have the meanings indicated:
Any device that enables a viewer to select between a cable service
and off-the-air television signals. Such a device may be more sophisticated
than a mere two-sided switch, may utilize other cable interface equipment
and may be built into consumer television receivers.
A government, education, public, local organization or commercial
use channel which is carried on a cable television system, but which is not
part of an institutional network.
A channel engineered at the head end of the cable television system
for the provision of services generally available to residential subscribers
of the cable television system, regardless of whether such services actually
are provided, including any channel designated for governmental, educational
or public use.
Another person who owns or controls, is owned or controlled by or
is under common ownership or control with such person.
Any and all compensation, fees, charges or receipts obtained from
the provision of cable services to subscribers by the grantee, except that
the terms shall not include:
The amount of any refunds, credits or other payments made to subscribers
or users.
Any taxes on services furnished by the grantee imposed directly or indirectly
on any subscriber or user by any municipal corporation, political subdivision,
state or other governmental unit and collected by the grantee for the governmental
unit.
Receipts for the sale or transfer of tangible property.
Receipts for the sale or transfer of the system, or any part thereof.
Receipts by the grantee from subscribers and other sources outside the
Township of Hanover, Northampton County, Pennsylvania.
Any revenues received from a home shopping or other similar channel,
as well as any and all other revenues which are not received directly from
the subscriber.
All installation or reconnection charges, collection or late charges,
service charges and administrative charges, and charges for additional outlets.
Revenues from advertising insertions or community bulletin board channel.
Revenues from remote controls or any other equipment which the franchisee
may from time to time make available to subscribers.
Amounts charged for or received by persons from sales of telephone access
or service that entitles the subscriber to the privilege of interactive telephonic-quality
telecommunications with substantially all persons having telephone or radio
telephone stations constituting a part of a particular system or in a specific
area.
[Added 4-13-2004 by Ord. No. 04-04]
Any revenues received by persons providing access to video programming
from video programmers for the transport of video programming to a subscriber's
premises or access to the video dial-tone network.
[Added 4-13-2004 by Ord. No. 04-04]
Any portion of a debt related to the sale of video programming or the
sale of access to a video network, the gross charges for which are not otherwise
deductible or excludable, that have become worthless or uncollectable as determined
under applicable federal income tax standards. If the portion of the debt
deemed to be bad is subsequently paid, the video programmer or person shall
report and pay the tax on that portion during the reporting period in which
payment is made.
[Added 4-13-2004 by Ord. No. 04-04]
Amounts received from retail sales of tangible personal property that
provides access to video programming.
[Added 4-13-2004 by Ord. No. 04-04]
Amounts charged or received by persons from sales of video programming
which is delivered to subscribers through a satellite master antenna television
(SMATV) system.
[Added 4-13-2004 by Ord. No. 04-04]
A person submitting an application or proposal to the Township for
a franchise to operate a cable television system under the terms and conditions
set forth in this chapter.
The process by which the applicant submits a written request and
indicates a desire to be granted a franchise for all or a part of the Township.
An application or proposal includes all written documentation and verbal statements
and representations, in whatever form, or forum, made by an applicant to the
Board concerning the construction, rendering of services, maintenance or any
other matter pertaining to the proposed cable television system.
Transfer of 25% or more of voting rights of a corporate franchise;
Transfer of 25% or more of voting rights of a corporate franchise general
partner;
Change in the general partners of a franchise;
A sale of 25% or more of a cable television system (based on the system's
net worth), from one person to another; or
A sale or transfer of a majority of a cable television system's
property or assets from one person or franchisee to another person.
Any service tier which includes the retransmission of local television
broadcast signals.
The Board of Supervisors for the Township of Hanover, Northampton
County, Pennsylvania.
Television programs originated by a cable television system and distributed
over the cable system, rather than through the air as in broadcasting.
(For the purposes of this definition, a cable operator may, though
not necessarily, be a franchisee.) Any person or group of persons who:
Provides cable television service over a cable system and directly or
through one or more affiliates owns a significant voting interest (at least
25%) in such cable system; or
Otherwise controls or is responsible for, through any arrangement, the
management and operation of such a cable system.
[Amended 4-13-2004 by Ord.
No. 04-04]
A facility consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is 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) a facility
that serves only to retransmit the television signals of one or more television
broadcast stations; b) a facility that serves subscribers without using any
public right-of-way; c) a facility of a common carrier which is subject, in
whole or in part, to the provisions of subchapter II of the Cable Communication
Policy Act, except that such facility shall be considered a cable system [other
than for purposes of section 541(c) of the Act] to the extent such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand services;
d) an open video system that complies with section 573 of the Act; or e) any
facilities of any electric utility used solely for operating its electric
utility system.
[Added 4-13-2004 by Ord. No. 04-04]
The Cable Communications Policy Act of 1984.
A portion of the electromagnetic frequency spectrum which is used
in a cable system which is capable of delivering a television channel.
[Added 4-13-2004 by Ord. No. 04-04]
A one-time or nonregularly occurring cost paid by the subscriber
and which is associated with the installation, maintenance, service or repair
of the cable service or other programming service.
A charge or fee imposed on a subscriber by a franchisee for such
franchisee's effort at collecting or attempting to collect an overdue
bill by making personal visits to a subscriber's home or place of business.
The first date on which a franchisee actually affixes cable to utility
poles or lays cable in underground trenches or conduits or causes the cable
to cross any street or public way.
The provision of video programming, whether or not for profit.
Any device that is capable of converting or changing signals to a
frequency not intended to be susceptible to interference within the television
or video, voice or data receiver of a subscriber, and by an appropriate channel
or other type of selector also permits a subscriber to view or otherwise use
signals delivered at designated dial locations, or such other reception and
use allocations as may be applicable and required for the practical use of
the signal.
A device which enables a subscriber to convert a scrambled signal
into a viewable or otherwise usable signal.
To make available channel or frequency space of equipment for the
exclusive use of the designated user.
The transmission, distribution or broadcasting of video programming
or services by satellite directly to subscriber's premises without the
use of ground receiving or distribution equipment, except at the site of the
subscribers or in the uplink process to the satellite.
[Added 4-13-2004 by Ord. No. 04-04]
The signal from a satellite to an earth receiver station.
Signals traveling from the head end to the subscriber receivers.
A small branch of cable or other transmitting medium which connects
the terminals on the back of the subscriber's receiver to the feeder
cable, or future technical equivalent, on the street, easement, rights-of-way
or public way.
Includes any public easement created by dedication, or by other means,
to the Township for public utility purposes or any other purpose whatsoever,
including cable television. "Easement" shall also include a private easement
used for cable television service.
When used with respect to satellite cable programming, to transmit
such programming in a form whereby the aural, visual or data characteristics
(or any combination) are modified or altered for the purpose of preventing
the unauthorized receipt of such service without authorized equipment which
is designed to eliminate the effects of such modification or alteration.
Very thin and pliable cylinders or strands of glass or plastic, or
any future developed technical equivalent, used to carry wide bands of multiple
frequencies.
The initial authorization or subsequent renewal granted under this
chapter to construct, operate and maintain a cable television system in all
or part of the Township.
The entire area of the Township.
A person that is awarded a franchise by the Board to construct, operate
and maintain a cable television system in all or part of the Township.
The date of expiration or the end of the term of a franchise, as
provided under a franchise agreement.
A fee or charge that the Township requires as payment for the privilege
of using the streets, rights-of-way, public ways and easements of the Township
in order to construct, maintain and operate a cable television system.
The Board which is empowered by federal, state or local law to grant
and award a franchise.
The field of strength of a television broadcast station computed
in accordance with regulations promulgated by the Federal Communications Commission
(FCC).
The electronic control center, where incoming signals, including
those of television broadcast stations, are amplified, modulated, filtered,
converted or in any way processed or converted for redistribution to subscribers.
The head end processes the cable system's return capability and provides
interface between the subscriber and institutional networks or any other networks,
transmission or retransmission facilities.
The total number of homes passed by a franchisee's cable television
system, or otherwise having the potential of being served promptly.
The satellite or remote receiving, processing and/or transmitting
facility, enabling the signal to be extended beyond the physical/electronic
capabilities of the cable electronics and/or to serve as a remote switching
facility.
A communications service or other programming service provided by
a franchisee over its cable television system. An informational service includes
but is not limited to a burglar alarm, medical alarm, data or other electronic
intelligence transmission, facsimile reproduction, meter reading and interactive
home shopping, or other business or political services or functions. For purposes
of this definition, an informational service shall also broadly mean video
or date voting, but does not include television channels, such as premium
movie channels.[1]
A service providing video programming to subscribers over switched
networks on an on-demand, point-to-point basis, but does not include services
providing video programming prescheduled by the programming provider.
[Added 4-13-2004 by Ord. No. 04-04]
Use of microwave or coaxial cable, fiber optic cable or any future
developed technical equivalent, or other apparatus or equipment, for the transmission
and distribution of signals between two or more cable systems for mutual distribution
of programming.
A charge which is added to a subscriber's account or bill for
nonpayment of a previously due account.
Programming locally produced by a franchisee, its agent or contractor,
and may include commercials as deemed appropriate and in the public interest
by the Board.
The electronic or other equipment required to combine video, audio
and/or data signals from a studio or origination point and convert them to
radio frequency (RF) or other frequencies for distribution on a cable system.
"Modulator" also means a very low-powered television or data signal generator
used to provide signals on a cable television.
The observation or testing of a signal or signals, or the absence
thereof, at the longest cascade of amplifiers, whether the signal is observed
by visual or electronic means.
A person such as, but not limited to, a cable operator, a multichannel
multipoint distribution service, a direct broadcast satellite service, or
a television receive-only satellite program distributor, who makes available
for purchase, by subscribers or customers, multiple channels of video programming.
[Added 4-13-2004 by Ord. No. 04-04]
Programming, exclusive of broadcast signals, carried on a cable television
system over one or more channels and subject to the exclusive control of the
cable operator or franchisee. However, such original cablecasting shall not
include public, educational or governmental access programming.
Information that a cable operator or franchisee makes available to
all subscribers generally.
The delivery over the cable television system of audio and/or video
signals in an unintelligible form to subscribers for a fee or charge (over
and above the charge for basic service) on a per-program or per-channel or
per-tier basis, where said unintelligible or unusable form is converted to
an intelligible or usable form for viewing or using only by subscribers paying
a separate fee or charge for the viewing or use of the signal(s). Further,
the signal(s) may be intelligible throughout the transmission, and the legal
reception of the signal(s) is/are controlled by the use of an electronic device
(trap) that may either permit or prohibit the reception of said signals.
The ratio of the number of a franchisee's subscribers to the
total number of households passed by a franchisee's cable television
system.
Any individual, corporation, business trust, estate, trust, partnership,
association of two or more persons having a joint common interest, governmental
agency or other legal entity.
Shall not include the gain resulting to any individual for the private
use in such individual's dwelling unit or any programming for which the
individual has not obtained authorization for that use.
The viewing for private use in an individual's dwelling unit
by means of equipment, owned or operated by such individual, capable of receiving
satellite cable programming directly from a satellite.
The monthly, bimonthly, quarterly, semiannual or annual price paid
by a subscriber in order to receive cable service.
Any day or other twenty-four-hour period, other than Sunday or a
federally recognized holiday. Moreover, any day or other twenty-four-hour
period not recognized as a holiday by a franchisee, and whereby its employees
are not given a paid holiday (other than Sunday), shall be considered a service
day.
A category of cable service or other programming service provided
by a franchisee, and for which either a separate rate is charged by a franchisee
or a separate piece of equipment, other than the receiver, is required.
The Commonwealth of Pennsylvania.
The surface of and the space above and below a public street, road,
highway, freeway, land, path, public way or place, alley, court, boulevard,
parkway, drive or other easement now or hereafter held by the Township (including
any street, as defined, which is acquired by eminent domain) for the purpose
of public travel and shall include other easement or rights-of-way now or
hereafter held by the Township (including any easement or rights-of-way acquired
by eminent domain) which shall, with their proper use and meaning, entitle
the Township and a franchisee to use thereof for the purpose of installing
or transmitting cable television system transmissions over poles, wires, cable,
conductor, ducts, conduits, viaducts, manholes, amplifiers, appliances, attachments
and other property as may ordinarily be necessary and pertinent to a cable
television system.
The ultimate consumer of the video programming provided by video
programmers over any means of transmission, other than wireless or direct-to-home
satellite transmission. The term does not include a video programming over
a video dial-tone system.
[Amended 4-13-2004 by Ord. No. 04-04]
The Township of Hanover, Northampton County, Pennsylvania.
That cable, or future technical and functional equivalent, which
transmits signals from the head end to the feeder cable, or its future technical
and functional equivalent.
A cable television system providing services in which information
can flow from the subscriber, as well as to the subscriber, or from a remote
location, via cable, back to the hub or head end with the ability to be distributed
in a downstream mode.
Signals traveling from a remote location back to the head end or
studio, utilizing the reverse function of the cable system.
Those channels engineered at the head end of the cable system for
the provision of services generally available to residential subscribers of
the cable system, regardless of whether such services actually are provided,
including channels designated for public, educational or governmental use.
United States Code.
A person or organization utilizing a cable television system or cable
television system equipment for purposes of production and/or transmission
of material, as contrasted with receipt thereof in a subscriber capacity.
A common carrier service for the transport of video programming to
subscribers.
[Added 4-13-2004 by Ord. No. 04-04]
An individual, partnership, association, joint-stock company, trust,
corporation, governmental entity, limited liability company or any other entity
that provides video programming to subscribers.
[Added 4-13-2004 by Ord. No. 04-04]
Video or information programming, whether in digital or analog format,
that is provided by a cable operator or generally considered comparable to
programming provided by a cable television operator and upon which such cable
television operator pays a franchise fee, Video programming does not include
on-line, interactive information services to the extent that the access to
such services is accomplished via dial-up or private telephone line or via
wireless or direct-to-home satellite transmission.
[Amended 4-13-2004 by Ord. No. 04-04]
The distribution of video programming using radio communications,
including but not limited to, terrestrial-based radio systems.
[Added 4-13-2004 by Ord. No. 04-04]
A day in which the Township is regularly open for business.
[1]
Editor's Note: The former definition of "interactive," which
immediately followed this definition, was repealed 4-13-2004 by Ord. No. 04-04.
In light of the United States Congress' intent in approving the
Cable Communications Policy Act of 1984 (expressed in Section 621, codified
at 47 U.S.C. § 521), the Board reaffirms and adopts those principles
and ideas as part of the Township's intent.
This chapter shall be effective within the geographical limits of the
Township.
A.
No person or cable operator shall be permitted to construct,
operate or maintain a cable television system without having first obtained
a franchise, and then entering into a franchise agreement with the Board.
B.
Where a person or cable operator is required by the Board,
or as a result of expansion, to obtain a franchise, then the Board shall notify
the person or cable operator, in writing, within 15 days of the formal action.
A.
Pursuant to Section 621(a)(1) of the Cable Communications
Policy Act of 1984 (codified at 47 U.S.C. § 541), the Board may
award one or more franchises within its geographical limits.
B.
A franchisee shall be selected as part of a public proceeding
and hearing which affords due process to the Board, the public and the applicant,
and after which, if the applicant is selected as a franchisee, such applicant
will enter into a franchise agreement with the Board, pursuant to the provisions
of federal, state and local laws and regulations.
A.
If the Board awards an applicant a franchise to construct,
operate or maintain a cable television system in all or a part of the Township,
or approves a proposal for renewal of a franchise, then within 90 days an
applicant or franchisee and the Board shall enter into a franchise agreement
which details the rights, duties, responsibilities and liabilities of both
parties.
B.
A new franchisee may not install any cable until the
franchise agreement is passed by ordinance and accepted by franchisee.
[Amended 4-13-2004 by Ord. No. 04-04]
C.
This section shall not be construed in any manner as
an extension of the franchise term which shall be deemed to commence on the
later of 90 days after the date that the Board approved the franchise or franchise
renewal by ordinance, or on the date of the expiration of a prior franchise
which has been renewed.
[Amended 4-13-2004 by Ord. No. 04-04]
A.
Upon award of a franchise by ordinance, and the subsequent
acceptance of the ordinance by a franchisee, a franchisee may construct, erect,
install, maintain, operate, repair, replace, remove or restore a cable television
system within the geographical limits of the Township in accordance with this
ordinance.
[Amended 4-13-2004 by Ord. No. 04-04]
B.
The cable television system may be located in, along,
across, over and under the streets, rights-of-way, easements and public ways
of the Township.
C.
If necessary, the responsibility of obtaining easements
for private property shall be that of the franchisee.
A.
The term of an initial franchise shall be no more than 15 years from the date of commencement of the franchise agreement as identified in § 61-8C.
B.
The terms of a renewal franchise may be for a period
not less than five years nor more than 15 years from the date that a franchise
renewal request, renewal proposal or franchise itself is approved by the Board
or the date upon which the initial franchise or the preceding renewal franchise
expires, whichever is later.
C.
If a franchise is renewed for a period less than seven
years, then the Board may explain, in the renewal franchise agreement, the
reasons for granting a shorter franchise term.
Any person desiring a new franchise in order to construct, operate and
maintain the cable television system shall first make an application to the
Board in the form that the Board will require. The application shall be accompanied
by an application fee as set from time to time by resolution of the Board
of Supervisors.
A.
Within 30 days of the submission of the application for
an initial franchise, the Board shall conduct a public hearing.
B.
The Board may review whatever issues the Board believes
to be pertinent.
C.
The Board may, at its own expense, avail itself of an
independent cable consultant in order to assist in the conducting of the public
hearing or evaluation of the application.
D.
At the public hearing, an applicant may be accompanied
or represented by technical staff or legal counsel.
E.
The Board shall act on the applicant's application
within 90 working days of the hearing. The decision shall be in writing and
shall set forth the reasons for either awarding or denying the application
for a franchise. If the decision is against (denies) awarding the franchise
to the applicant, then the reason for such a decision cannot be in whole,
or in part, based on the proposed rate structure.
A.
To the extent permitted by law, a franchisee shall at
all times defend, indemnify, protect, save harmless and exempt the Township,
its Board, officers, agents, servants, employees and consultants from any
and all penalty, damage or charges arising out of claims, suits, demands,
causes of action or award of damages, whether compensatory or punitive, or
expenses arising therefor, either at law or in equity, which might be claimed
now or in the future, including any payments required by the commonwealth's
Workers' Compensation Act,[1] which may arise out of or be caused by the construction, erection,
location, products performance, operation, maintenance, repair, installation,
replacement, removal or restoration of the cable television system within
the Township by a negligent act or omission of a franchisee, its agents or
employees, contractors, subcontractors, independent contractors or implied
or authorized representatives; provided, however, that the franchisee shall
have no obligation to defend, indemnify, protect, save harmless and exempt
the Township, its Board, officers, agents, servants, employees and consultants
from any or all penalty, damage, charges or other liability arising out of
its or their own negligence or other culpable conduct.
[1]
Editor's Note: See 77 P.S. § 1 et seq.
B.
Attorney's fees and consultant and expert witness
fees are specifically included as a cost which may be recovered by the Township
from a franchisee in an action against the franchisee for indemnity.
C.
The Township specifically reserves the right to retain
legal counsel or consultants of its own choice, at its own expense.
D.
If a franchisee obtains legal counsel for the Township,
then the Board shall have the right to approve legal counsel.
E.
The Board shall not unreasonably withhold its approval
of legal counsel.
F.
With respect to a franchisee's own defense of such
actions noted in this section, it is understood that such franchisee reserves
the right to select and retain, without the Board's approval, counsel
of the franchisee's own choice, at such franchisee's expense.
A franchisee shall provide and maintain, during the life of the franchise,
public and personal liability and property damage insurance and umbrella coverage
in at least the following amounts:
A.
A franchisee shall provide and maintain, during the life
of a franchise, workers' compensation insurance in accordance with the
laws of the Commonwealth of Pennsylvania.
B.
A franchisee shall provide such workers' compensation
insurance for all part-time and full-time nonexempt employees.
C.
Upon request, a certificate shall be filed with the Board
by either the insurance carrier or franchisee showing such insurance to be
in force at all times.
D.
In the event that such workers' compensation insurance
is canceled, revoked, not renewed or otherwise terminated, then either the
insurance carrier or franchisee shall notify the Board, in writing, within
30 working days of such cancellation, revocation, nonrenewal or termination.
A.
The Board recognizes that the elements of a franchise
awarded to a franchisee are not static, but rather they change with time.
B.
Consequently, the ability of a franchisee to provide
cable service and operate a cable system during the term of a franchise may
be adversely affected by any number of factors.
At any time the FCC or other federal or state agency requires or requests
the submission of reports, data or other information by a franchisee, it shall
at the same time submit those reports, data or other information to the Board
which are applicable to the Township.
A.
A franchisee shall make available to the Board a copy
of the local report to stockholders or a similar annual financial report.
B.
The report shall include at least the following:
(1)
A statement summarizing the previous year's activities
in the development and expansion of the cable system, including services commenced
and terminated and subscribers gained and lost and miles of plant construction,
and identified in a narrative.
(2)
A detailed financial statement, including a statement
of all sources of income of the principal company or franchisee, excluding
therefrom any and all information pertaining to the principal cable company's
or franchisee's parents, or owners, affiliates or subsidiaries.
(3)
A statement of current cost of construction by component
category.
(4)
A detailed statement with respect to complaints, identifying
the number, nature and disposition, including any refunds generated by complaints.
C.
The financial aspects of the annual report shall be certified
as correct by an independent certified public accounting firm; provided, however,
that the franchisee shall not be required to retain an independent certified
public accounting firm solely for the purpose of preparing a report for the
Board, and there shall be submitted along with the report, or a required addendum
thereto, such other information as the Board may request with respect to a
franchisee's properties and experiences relating to the cable television
system's operation in the Township.
A.
A franchisee shall keep complete and accurate books of
accounts and records of the business and operations under and in connection
with the cable television system.
B.
The Board shall have the right to review all records
of the franchisee which pertain to the franchisee's operations in the
Township upon 10 business days' written notice.
C.
The Board shall have the right to hire an independent
certified public accountant, or other business or financial expert, to review
on an annual basis the books and records of a franchisee.
D.
An intentional or willful false entry into the books
and/or records of a franchisee, made by a franchisee, of a material and substantial
fact shall constitute a violation of a material provision of this chapter.
Section 632(a)(1) of the Cable Communications Policy Act of 1984 (codified
at 47 U.S.C § 552), as amended by § 8 of Cable Act of
1992, allows the Board to enforce customer service requirements in accordance
with the terms and conditions therein set forth. The Board reserves the right
to enforce customer service standards in accordance with the applicable terms
and conditions of the Cable Act of 1984, as the same has been or may in the
future be amended, and all applicable regulations of the FCC.
A.
A franchisee, at its principal place of business, shall
make available to a potential subscriber, actual subscriber or user information
regarding the service(s) rendered. Such information shall be current and shall
include the following:
(1)
Number of services provided, in total and by billing
category.
(2)
Types of services provided (by broad categories of video
programming and specific services that will be provided).
(3)
Description of activated and programmed channels.
(4)
Rate schedules (including any discount or special promotion
packages).
(5)
Billing periods.
(6)
Maintenance and repair fees.
(7)
Connection, disconnection and reconnection charges.
(8)
Policy on and procedure for obtaining a refund.
(9)
Complaint policy and procedure.
(10)
Input selector switch policy.
B.
A franchisee shall have on file for public inspection
the following:
(1)
A copy of the franchise agreement.
(2)
A map showing the franchise area of such franchisee.
(3)
A copy of the complaint procedure for subscribers and
users.
(4)
A copy of rules relating to subscriber privacy.
(5)
A legible notice, placed in a conspicuous place in the
office, to the effect that a copy of the aforementioned is kept there for
inspection by potential subscribers, actual subscribers or users.
C.
Should a potential subscriber, actual subscriber or user
request a copy of any item in this section, then a franchisee may recover
the cost of reproduction from the person making the request.
A.
Notification.
(1)
If a subscriber has not received cable services contracted
for within 24 hours after the subscriber has given notification of an interruption
to the franchisee, then the subscriber shall be entitled to a refund.
(2)
If a subscriber has not received cable services contracted
for but the franchisee has resolved the problem and the subscriber is receiving
the cable service contracted for within 24 hours after the subscriber has
given notification of an interruption to the franchisee, then the subscriber
shall not be entitled to a refund.
B.
A refund may be the customer's choice of one of
the following:
(1)
Crediting a subscriber's account, on a pro-rata
basis from the first date that interruption occurred, for lost, uncontracted
for or inadequate cable or other programming services;
(2)
Immediately discontinuing service at no charge to the
subscriber and returning to the subscriber, on a pro-rata basis from the date
that the situation first occurred, any prepaid or unused monthly charges;
or
(3)
Free access to a cable or other programming service of
the subscriber's choice for a period of one hour for every one hour of
lost, uncontracted or inadequate cable of other programming services on an
equal basis, excluding installation costs.
C.
This section shall not apply to a new subscriber's
application for cable television service or to a renewal application made
by a former subscriber desiring cable television service.
A.
Except in times of natural or man-made emergency or a
loss of all channels (no picture), a franchisee shall make every good faith
effort to respond to the service calls and requests of subscribers within
such franchisee's normal business or service hours.
B.
A franchisee will begin working on service interruptions
promptly and in no event later than 24 hours after the franchisee receives
notice of the interruption with a telephone communication to the franchisee
being deemed sufficient notice. The franchisee will begin actions to correct
other service problems the next business day after notification. These time
periods will be extended where there are conditions beyond the control of
the franchisee.
A.
A franchisee shall maintain at least one toll-free telephone
number to accommodate normal business inquiries. The toll-free number shall
be for use by citizens and other persons calling from within the geographical
limits of the Township.
B.
A franchisee shall maintain a separate, twenty-four-hour
toll-free telephone number to facilitate calls concerning power outages or
other emergencies.
A cable operator or franchisee shall comply with any and all applicable
rules and regulations of the FCC in providing input selector switches and
installing cable service to subscribers.
A.
At the time of initial installation, new subscribers
shall be informed, in writing, of at least the following practices of the
franchisee:
(1)
Billing procedures (including payments necessary to avoid
discontinuance of service).
(2)
Payment due dates.
(3)
Late charges.
(4)
Advance billing options.
(5)
Resolutions of billing disputes and complaints.
(6)
Refund policy for service interruptions.
(7)
Current service rates in a detailed and understandable
format.
(8)
Procedure and amount of premium charges for installation.
(9)
Any promotional rates, including discount rates and incentive
rates.
B.
Whenever there is a change in a franchisee's billing
practices or payment requirements, all subscribers must be notified, in writing,
at least 30 days before such billing practices or payment requirements become
effective.
C.
Whenever there is a permitted late charge, such late
charge must be itemized on a subscriber's bill.
D.
A franchisee may designate that portion of a subscriber's
bill attributable to the franchisee fee as a separate item on the bill.
A.
A subscriber shall not be considered delinquent in payment
until at least 30 days after the due date of the bill and payment has not
been received by a franchisee.
B.
Before disconnection of a subscriber's cable service
takes place, the following must occur:
(1)
The subscriber must, in fact, be delinquent in payment
for cable television service; and
(2)
At least five days have elapsed after written notice
of disconnect has been personally served upon the subscriber;
(3)
At least five days have elapsed after mailing written
notice of disconnect to the subscriber; or
(4)
At least five days have elapsed after subscriber has
either signed for or refused a notice of disconnect.
C.
The notice of disconnection must expressly and clearly
state the amount that is owed by the subscriber to a franchisee, the total
amount required to be paid to avoid disconnection and the date and place where
such payment must be made.
D.
Disconnection of service must occur on a normal service
day of the franchisee.
E.
Receipt of a check from a subscriber, in response to
a notice of disconnect, which is returned to coaxial because of nonsufficient
funds does not constitute payment and the affected franchisee need not give
further notice of disconnection.
F.
A reconnection charge may not be imposed solely because
a subscriber was previously delinquent with a cable television service account.
Any cable operator or franchisee shall comply with all applicable laws
pertaining to subscriber privacy.
A.
For existing cable television system aerial facilities,
a franchisee shall replace said aerial facilities with underground facilities
concurrently and in cooperation with similar programs of the telephone and
power utilities.
B.
For any cable television system expansion, a franchisee
shall replace the system underground in areas where both telephone and power
lines are underground.
C.
At no time shall a cable television system be the only
aerial facility.
D.
Where undergrounding is utilized, a franchisee shall
have the option of sharing or not sharing utility trenches. All underground
cable must be initially installed at least 18 inches below the surface of
the ground.
E.
All wires, conduits, cable and other property and facilities
of a franchisee shall be so located, constructed, installed and maintained
so as not to endanger or unnecessarily interfere with the usual and customary
use, traffic and travel upon the streets, rights-of-way, easements and public
ways of the Township.
F.
In the event that a franchisee's system creates
a hazardous or unsafe condition or an unreasonable interference with property
or its use, then at its own expense such franchisee shall, voluntarily or
upon the request of the Board, remove that part of the system that creates
the hazardous condition for the subject property.
G.
A franchisee shall not place equipment where it will
interfere with the rights of property owners with gas, electric or telephone
fixtures, or with water hydrants or mains, or with wastewater lift stations
or any other service or facility that benefits the Township's health,
safety or welfare.
H.
If at any time during the period of this franchise the
Township shall lawfully elect to alter or change the grade of any street,
sidewalk, alley or other right-of-way for public transportation, the franchisee,
upon reasonable notice by the Township, shall remove, relay and relocate its
poles, wires, cables, underground conduits, manholes, other fixtures and equipment
at its own expense.
I.
A franchisee shall keep and maintain all its property
in good condition, order and repair, so as to at all times protect the Township's
health, safety and welfare.
J.
A franchisee shall comply with the requirements of the
Pennsylvania one call system as set forth in 73 P.S. § 176 et seq.,
as amended.
K.
The Board shall give a franchisee at least 10 working
days' notice, except in emergencies or in situations where cable or other
facilities of the franchisee will not be affected, of the Township's
plans for street improvements where paving or resurfacing of a permanent nature
is involved, or where installation of sewers, drains, water pipes, storm drains,
lift stations, force mains or power or signal lines are involved.
L.
The notice that the Board provides a franchisee shall:
(1)
Describe the nature and character of improvements.
(2)
Describe the streets upon which the improvements are
to be made.
(3)
Describe the extent of the improvements.
(4)
Describe the estimated work schedule for the project.
(5)
Provide for a sufficient amount of time in which to allow
such franchisee to maintain continuity of service.
M.
A franchisee shall, on the request of any person holding
a building-moving permit, temporarily remove, raise or lower the cable wires
to allow the moving of the building. The expense of temporary removal shall
be paid by the person requesting it, and such franchisee may require payment
in advance. The affected franchisee shall be given not less than 10 service
days' notice of a contemplated move to arrange for temporary wire changes.
N.
A franchisee shall have the authority to trim trees upon
and overhanging the streets, alleys, sidewalks and other public ways of the
Township so as to prevent branches of the trees from coming in contact with
the franchisee's wires and cables.
O.
Before a franchisee trims trees, it shall either erect
and maintain visible and understandable precautionary signs or use flagmen
to direct oncoming vehicles and pedestrians around the work site.
P.
All trimming of trees shall be done at the expense of
the affected franchisee, unless the Board requests the tree-trimming for aesthetics
rather than for safety, in which case the written permission of both the Board
and the property owner must be obtained.
Q.
In the event of disturbance of any public or private
property resulting from the actions of a franchisee, then such franchisee
shall, at its own expense, and in a manner approved by the Board and the owner,
replace and restore such public or private property in as good a condition
as before the actions causing the disturbance. In the event that a franchisee
fails to perform the replacement or restoration, the Board or the owner shall
have the right to do so, at the sole expense of such franchisee.
Any franchisee who constructs a cable system through easements shall
ensure that:
A.
The safety, functioning and appearance of the property
and the convenience and safety of other persons not be adversely affected
by the installation or construction of facilities necessary for a cable system.
B.
The cost of the installation, construction, operation
or removal of such facilities be borne by a franchisee or subscriber, or a
combination of both.
C.
The owner of the property through which the easement
passes shall be justly compensated by a franchisee for any damages caused
by the installation, construction, operation or removal of such facilities
by a franchisee.
A.
Unless exempted by the Board, such franchisee shall promptly
remove its cable television system property from the streets, public ways
and private property located within the Township whenever the following occurs:
(1)
A franchisee ceases to operate all or part of the cable
television system for a continuous period of three months.
(2)
A franchisee, during any twelve-month period, ceases
to operate all or part of the cable television system for a cumulative period
of three months.
(3)
A franchisee ceases and fails to construct the cable
television system outlined in the application or proposal for renewal or renewal
franchise agreement.
B.
If not removed voluntarily by a franchisee, then the
Board may notify such franchisee that, if removal of the property is not accomplished
within 180 days or substantial progress toward removal is not made within
120 days, then the Board may order officials or representatives of the Board
to remove such franchisee's cable television system property at the franchisee's
expense.
C.
If officials or representatives of the Board remove a
franchisee's cable television system property, said property shall become
the property of the Township and the Board may take whatever steps are available
under Commonwealth law to declare the property surplus and sell it, with the
proceeds belonging to the Township.
D.
When such franchisee removes its cable television system
property from the streets, public ways and private property located within
the Township, the franchisee shall, at its own expense and in a manner approved
by the Board, replace and restore such public or private property in as good
a condition as before the work causing the disturbance was done.
Construction, installation, maintenance and repair of the cable television
system shall comply with all the requirements and standards of applicable
federal, state and local law and regulations.
A.
New subscribers. A franchisee shall extend cable television
services to any resident at the franchisee's standard rate if:
B.
New or existing developments with overhead cable construction.
(1)
A franchisee shall extend cable television service to
any existing group of residences (wholly within the Township) at such franchisee's
standard rate if the existing group of residences has a density of at least
40 residences per stand mile of contiguous cable installed from the nearest
existing energized plant extremity. Measurements shall be in increments of
1/4 mile, and a franchisee shall not be required to extend service to a group
of residences if the density of the nearest one-fourth-mile distance does
not meet the density requirement set forth herein. In determining whether
the density requirement set forth in this subsection has been met, there shall
be added to the distance measured along any public roadway or right-of-way
the distance between the right-of-way and the residence or other structure
to which service is requested.
(2)
Any development or group of residences not meeting the
above criteria may be serviced at the franchisee's discretion, or pursuant
to any applicable Commonwealth regulation.
C.
New or existing developments with underground cable construction.
(1)
A franchisee may, at the franchisee's option and
upon agreement with the developer, extend energized or unenergized cable or
conduit to all new unoccupied residential developments as they are constructed.
The franchisee and the developer may agree as to when the cable or conduit
is to be energized.
(2)
Costs of trenching, conduit, pedestals and/or vaults
and laterals, as well as easements therefor, required to bring service to
the development may be borne or shared by the developer and/or landowner.
(3)
A franchisee need not provide cable television service
to such an entire development until 25% of the residential dwelling units
to be served have agreed to subscribe to receive cable services, and a franchisee
need not provide cable television service unless and until the number of residences
to be serviced have a density of at least 40 residences per strand mile of
contiguous cable installed from the nearest existing energized plant extremity.
Measurements shall be in increments of 1/4 mile, and a franchisee shall not
be required to extend service to a group of residences if the density of the
nearest one-fourth-mile distance does not meet the density requirement set
forth herein. In determining whether the density requirement set forth in
this subsection has been met, there shall be added to the distance measured
along any public roadway or right-of-way the distance between the right-of-way
and the residence or other structure to which service is requested.
D.
Time period for commencement of construction of extensions. The construction necessary to expand the facilities to provide service to a new or existing development pursuant to Subsection B(1) or C(3) shall be commenced within 60 days of the date upon which the franchisee first receives notice that the density requirement set forth in said Subsection B(1) or C(3) has been met (as well as all other conditions precedent to the obligation to commence service), and once construction has commenced it shall continue without interruption so as to be completed as quickly as possible; provided, however, that in the event that matters outside the control of the franchisee (including but not limited to the unavailability of cable or electronic equipment or other supplies, the unavailability of contractors to perform the work, labor shortage or stoppage and inclement weather) cause or threaten to cause a delay in the commencement or conclusion of construction, the franchisee shall report to the Board the matter causing or threatening to cause delay, and the Board and the franchisee shall agree upon a reasonable extension for the commencement or conclusion of construction.
A.
A franchisee's construction schedule of the cable
television system shall be detailed in the franchise agreement in a form and
format determined by the Board.
B.
A franchisee who does not abide by the system construction
schedule shall be subject to the penalties set forth in this chapter, as well
as being subjected to any liquidated damages, if permitted and set forth,
in the franchise agreement.
C.
As used in this section, the term "franchisee" shall
mean an applicant for a new franchise rather than an applicant for a renewal
of an existing franchise.
A.
A franchisee shall construct, operate, maintain, repair,
remove, replace or restore the cable television system in strict compliance
with all current technical codes adopted by the Township, the Commonwealth
of Pennsylvania or the United States.
B.
The codes referred to specifically include but are not
limited to construction, fire and safety codes which are applicable to these
activities.
A.
A franchisee shall continuously carry the signals of
all stations now or hereafter required by applicable law.
B.
A franchisee shall be required to provide access to the
same level of service, in terms of the number of activated channels and types
of services or channels provided, to all subscribers within the franchisee's
service area.
A.
Except in times of natural or man-made emergency, a franchisee
shall, at all times, keep and maintain within 20 miles of the Township a proper,
sufficient and adequate inventory of maintenance and repair parts for the
cable television system as will assure the continuity of the service of the
system to subscribers in the Township within 24 hours or less.
B.
Such sufficient maintenance and repair parts should be
kept in order to avoid delays by having to obtain necessary parts and equipment
from distances more that 20 miles from the Township.
C.
Except in times of natural or man-made emergency, or
strike, a franchisee shall have sufficient maintenance and repair crews as
necessary in order to give reasonable and capable maintenance and repair.
A.
A franchisee shall have and maintain accurate and detailed
maps indicating:
(1)
The franchise area.
(2)
The present area being served, by street, to the nearest
1/4 mile.
(3)
The area that will be served as a result of expansion,
by street, to the nearest 1/4 mile.
(4)
The area, if any, that is not projected to be served,
even by expansion, by street or geographical boundary.
B.
A franchisee shall have and maintain accurate as-built
and schematic drawings of facilities.
C.
A franchisee's maps and drawings may be reviewed
and inspected by the Board or its designee. The franchisee shall provide the
Board with an updated map of the franchisee's system within the Township
within 60 days of the date of completion of any portion or extension of the
system, as well as within 60 days of the date any renewal franchise is executed.
A franchisee shall obtain, at its own expense, all permits and licenses
required by law, rule, regulation or ordinance and maintain the same in full
force and effect for as long as required.
The objective of the Board is to ensure that a franchisee's cable
system will deliver the signal quality required by the FCC. The FCC shall
have the authority to pinpoint responsibility for poor performance. The cable
system shall meet FCC standards for reception of broadcast and all other signals
as prescribed in the FCC's rules and regulations. A franchisee shall
maintain cable system integrity so as to meet FCC RF leakage requirements.
A franchisee shall comply fully with the subscriber viewing rules and
standards for cable television operations as adopted by the FCC in 47 CFR
76, FCC rules or elsewhere. Those standards now existing or hereafter issued
by the FCC are incorporated into this chapter.
A.
Unless specifically set forth in a franchise agreement,
a franchisee shall not be required to construct or obtain the necessary studio
and/or other facilities to provide public, educational or governmental use
channels, nor shall a franchisee be required to provide equipment necessary
for the connection of public, educational or governmental programming to the
franchisee's plant or facilities. In the event that the franchisee does
obtain or construct the necessary facilities, the following subsections shall
govern cable channels for public, educational or governmental use.
B.
To the extent permitted by law, and in order to fulfill
the Township's desired goal of achieving a progressive public, educational
and governmental access policy that will facilitate the long-range needs of
the community, the Board adopts the following:
(1)
At the time of an initial application or proposal, and
contained within a franchise agreement, or subsequent renewal franchise agreement,
a franchisee shall pledge to include the following guaranties:
(a)
A franchisee shall provide, at its own expense, at least
one eighteen-hour-per-day educational channel(s) that is/are available to
educational institutions located within the Township.
(b)
A franchisee shall provide, at its own expense, one twenty-four-hour-per-day
local government access channel(s) that is/are available to agencies of the
Township.
(c)
A franchisee shall provide, without charge, at least
one drop(s) and/or outlet(s) and one converter(s) to each governmental office
building (including fire stations, police stations, public library facilities
and public and private school buildings) that is passed by a franchisee's
cable. Subject to change in the franchise agreement, if more than one outlet
is required at any of said locations, then such franchisee shall install additional
outlets at the cost of time and material only, and there will be a monthly
service charge at said locations.
(2)
If, at any time, 80% of the channel time allocated to
either the public, educational or governmental access channels is constantly
used, then the franchisee shall provide a second channel for either public,
educational or governmental access.
A.
Rates charged for their service tiers, cable services
or other programming services within the cable television system as offered
by a franchisee, may be regulated by the Board, if permitted by the FCC or
the federal government.
B.
When rates are adjusted by a franchisee, such franchisee
shall notify in writing the Board and the subscribers at least 30 days before
the adjustment in rates becomes effective.
C.
A franchisee shall prohibit discrimination among customers
of basic cable service, and the public in general for both rates and charges
in accordance with the requirements of the Cable Act of 1984, as amended,
and applicable regulations.
A.
Any franchisee awarded a franchise or renewal franchise
after the date this chapter becomes effective, and any existing franchisee,
shall pay to the Township for the privilege and use of the streets, rights-of-way,
easements and public ways and other facilities of the Township in the operation
of the cable television system, and for the Township's supervision thereof
during the term of the franchise, a sum equal to 5% of the annual gross revenues
of such franchisee.
B.
If the FCC, Congress or other governmental entity with
authority over cable ever allows a governmental entity or franchising authority
(including the Board) to increase the franchise fee beyond 5%, then the Board
shall have the authority to increase the franchise fee to the maximum rate
allowable.
C.
In the event that this chapter, in conjunction with any
other applicable law, authorizes the Board to increase the franchise fee beyond
that set forth in the franchise agreement, any such increase in the franchise
fee may only be imposed in the event and to the extent that the increase may
be passed on to the customers of the franchisee.
D.
Payment of the quarterly portion of the franchise fee shall be rendered to the Township on a quarterly basis. In the event that payment is not made within 60 days after the date specified in this section, then such franchisee may be declared in default of the franchise, and the franchise may be revoked, terminated or canceled in accordance with § 61-48 of this chapter.
E.
The Board reserves the right to inspect, or to appoint
an agent or representative to inspect, the books and financial statements
of the franchisee to determine the accuracy of franchise payments.
F.
The right of audit and recomputation of any and all amounts
paid under a franchise shall always be accorded to the Board, or to appoint
an agent or representative to inspect.
G.
No acceptance of any payment by the Township shall be
construed as a release of, or an accord or satisfaction of, any claim that
the Township might have for further or additional sums payable under the terms
of this chapter, or for any other performance or obligation of a franchisee
hereunder.
H.
The term "franchise fee" shall include any tax, fee or
assessment of any kind imposed by the Township or other governmental entity
on the franchisee or a subscriber, or both, solely because of their status
as such. A franchise fee does not include:
(1)
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable operators
or franchisees, or their services, but not including a tax, fee or assessment
which is unduly discriminatory against cable operators or franchisees or cable
subscribers).
(2)
Requirements or changes incidental to the awarding of
a franchise or incidental to the enforcing or regulating of a franchise agreement,
or cable law or ordinance, including payments for the following:
I.
Nothing in this section shall be construed to limit the
authority of the Board to compose a tax, fee or other assessment of any kind
on any person (other than a cable operator or franchisee) with respect to
cable service or other programming or communications service provided by such
person over a cable system for which charges are assessed to subscribers,
but not received by a cable operator or franchisee. For purposes of illustration
only, this subsection shall include the situation(s) where a premium service
directly bills a subscriber, or the cable operator or franchisee merely acts
as a collection agent for a premium service billing directly to a subscriber.
A.
A franchise may not be assigned or transferred, in whole
or in part, by a franchisee without prior notification to the Board. In the
event that a controlling interest (i.e., more than 50%) of the stock of a
corporate franchisee is transferred to a person or entity other than a person
or entity owning shares of stock in a corporate franchisee as of the date
a franchise agreement is executed, the franchisee shall give the Board 45
days' written notice of the transfer.
B.
A copy of the completed sales agreement or equivalent
instrument between the franchisee and proposed franchisee shall, if requested,
be provided to the Board, so that the Board may discover the assumption of
obligations by the franchisee and proposed franchisee with respect to the
cable system, provided that provisions unrelated to the assumption of obligations
may be deleted therefrom. In lieu of the sales agreement, the Board may accept
an attested summary of obligations assumed by the above-referenced parties.
C.
The proposed assignee or transferee shall execute an
affidavit acknowledging that it has read, understood and intends to abide
by both this chapter and the applicable franchise agreement.
D.
In the event of any approved assignment or transfer, the assignee or transferee shall assume all obligations and liabilities of the former franchisee, except as noted in Subsection E.
E.
An assignment or transfer shall not relieve the former
franchisee of its liabilities under the franchise agreement until the assignment
actually takes place, or unless specifically relieved by the Cable Communications
Policy Act of 1984, or unless specifically relieved by the Board.
A franchisee may obtain from the Board modifications of the requirements
of the franchise in accordance with the provisions of Section 625 of the Cable
Communications Policy Act of 1984, 47 U.S.C. § 545, as the same
has been or may be amended from time to time.
A.
When any of the following events occur, then such act
or omission shall be considered a material breach of the franchise, and the
Board shall notify the affected franchisee, in writing, of the specific breach
and direct such franchisee to comply with all such provisions of the proposal,
franchise agreement or this chapter:
(1)
A franchisee takes the benefit of any present or future
insolvency statute; or shall make a general assignment for the benefit of
creditors; or file a voluntary petition in bankruptcy, or file a petition
or answer seeking an arrangement or reorganization or readjustment of its
indebtedness under federal bankruptcy laws or under any other law or statute
of the United States or any state thereof; or consents to the appointment
of a receiver, trustee or liquidator of all or substantially all of its property;
(2)
A franchisee, by order or decree of a court, is adjudged
bankrupt, or an order is made approving a petition filed by any of its creditors
or by any of the stockholders of the franchisee seeking its reorganization
or the readjustment of its indebtedness under federal laws or under any law
or statute of the United States or of any state thereof, provided that if
any such judgment or order is stayed or vacated within 90 days after the entry
thereof, any notice of cancellation shall be and become null, void and of
no effect;
(3)
By or pursuant to or under authority of any legislative
act, resolution or rule or any order or decree of any court or governmental
board, agency or officer having jurisdiction, or a receiver, trustee or liquidator
who takes possession or control of all or substantially all of the property
of a franchisee, and such possession or control shall continue in effect for
a period of 90 days;
(4)
A franchisee voluntarily abandons, deserts or discontinues
its operation hereunder granted for a period of 30 consecutive days; or a
franchisee intentionally or willfully provided false information or false
books and records;
(5)
A franchisee knowingly or willfully fails to duly and
punctually pay a franchise fee to the Township, or fails to punctually make
any other payment required hereunder, when due, and remains unpaid for a period
of 60 days, unless the amount of such payment is part of a good faith dispute,
in which case the anticipated payments will, if requested by the Board, be
put into escrow until the dispute is settled;
(6)
A franchisee has abandoned, failed or refused to perform
or observe its obligations under this chapter, any franchise agreement or
franchisee's proposal, or failed or refused to comply with the instructions
of the Township relative thereof, unless as a part of a good faith dispute
with the Township concerning such matters;
(7)
Any attempt by a franchisee to sell, assign or transfer a franchise except pursuant to the procedure set forth in § 61-46 of this chapter; or
(8)
A franchisee fails to take appropriate corrective action
as may be required of it under the terms of this chapter and following written
notice to the franchisee.
B.
Where a franchisee satisfactorily corrects any of the enumerated conditions [Subsections A(1) through A(8), inclusive], within 60 days after notice to do so by the Board, then in no event shall the enumerated condition be weighed against such franchisee in any subsequent review of such franchisee's performance.
C.
Within 75 days after such written notice is mailed to
a franchisee, the Board shall conduct a public hearing on the matter.
D.
The Board shall provide written notice to a franchisee
and the surety of the time and place of said public hearing in the following
manner:
(1)
To a franchisee, by affixing, in a conspicuous place,
said notice to the physical structure of the local office at least 30 days
prior to the scheduled hearing; and
(2)
To a franchisee, by depositing said notice in the United
States mail, return receipt requested, addressed to the franchisee or designated
agent at least 30 days prior to the scheduled hearing. A certificate shall
be signed by the Township Solicitor or his designee certifying that the notice
required herein was mailed on a specified date, and a copy of the required
notice shall constitute constructive notice to such franchisee. If such notice
was properly accomplished, as evidenced by such certificate, then the failure
of such franchisee, designated agent or the surety on the performance bond
to receive such notice shall not constitute grounds to cancel or continue
the scheduled hearing, but the Board may elect in its discretion to continue
the hearing.
E.
At the time of the hearing, the affected franchisee may
present information on the current status of the alleged franchise agreement.
If the situation has been resolved, or steps are being taken by such franchisee
to resolve the situation, then the franchisee should present the information
at the hearing.
F.
If the affected franchisee or representative fails to
attend the hearing and has not requested a continuance of the hearing, then
such franchisee shall be deemed to have waived its right to a further continuation
of the matter and may be declared in default of the franchise agreement.
G.
The Board may, after the public hearing, direct the affected
franchisee to take corrective action within a specified period of time, or
may declare such franchisee in default of the franchise agreement and thereafter,
revoke, terminate or cancel such franchisee's franchise.
H.
If the Board directs corrective action to take place
within a specified time or declares such franchisee in default of the franchise
agreement, then that declaration shall be reduced to writing and the notice
of corrective action or default shall be mailed to such franchisee and surety
within 10 working days of the Board's action.
I.
If within 30 service days the franchisee or surety do
not take significant action to rectify the breach or submit a plan detailing
how the franchisee will eliminate the breach, then the Board may revoke such
franchisee's franchise and shall notify the affected franchisee and surety
forthwith.
Upon the denial of renewal of the franchise or pending the assignment
or transfer of a franchise, a franchisee shall make every reasonable effort
to ensure that all subscribers receive continuous, uninterrupted service.
A.
If a renewal of a franchise held by a franchisee is denied
and the Township acquires ownership of the cable television system, or the
Township effects a transfer of ownership of the cable television system to
another person, any such acquisition or transfer shall be:
(1)
At fair market value, determined on the basis of the
cable television system as a going concern, but with no value allocated to
the franchise itself; or
(2)
In the case of any franchise existing on December 29,
1984 (which is the effective date of the Cable Communications Policy Act of
1984), at a price determined in accordance with the franchise, if such franchise
contains provisions applicable to such an acquisition or transfer.
B.
If a franchise held by a franchisee is revoked for cause
and the Township acquires ownership of the cable television system or effects
a transfer of ownership of the system to another person, any such acquisition
or transfer shall be:
(1)
At a fair market value, determined on the basis of the
cable television system as a going concern, but with no value allocated to
the franchise itself; or
(2)
In the case of any franchise existing on December 29,
1984 (which is the effective date of the Cable Communications Policy Act of
1984), at a price determined in accordance with the franchise, if such franchise
contains provisions applicable to such an acquisition or transfer.
A.
Upon written request, the Board may require detailed
reports from the franchisee pertaining to the current status of the cable
television system. Any report requested pursuant to this section shall be
delivered to the Board no later than 30 days following actual receipt by the
franchisee of a written request from the Board.
B.
Following the presentation of the written report, and
within 60 days after such reports are received, upon request, such franchisee
shall, if requested, appear before the Board to explain the written report.
C.
The written status report shall include, on request of
the Board, the following:
(1)
The cable television system's posture in relation
to current developments within the cable television medium within the counties
of Lehigh and Northampton, Commonwealth of Pennsylvania.
(3)
A detailed statement giving the history of the construction,
maintenance and repair schedule of the cable television system.
D.
The Board shall review the performance of the affected
franchisee.
E.
In reviewing the performance of the affected franchisee,
the Board may consider any relevant matter brought out in the written report
or cable television survey, or other reports available to the Board.
F.
In reviewing the performance of the affected franchisee,
the Board shall conduct a hearing and solicit the comments of the public present.
However, in such a case, such franchisee must be allowed the opportunity to
ask questions of anyone who makes comments, and such franchisee must be allowed
to present evidence that would either affirm or contradict any positive or
negative assertions made on the part of such franchisee's performance.
A.
During the six-month period which begins with the 36th
month before a franchise expiration, the Township may on its own initiative,
and shall at the request of a franchisee, commence proceedings which afford
public notice and participation for the purpose of:
B.
Upon completion of a proceeding under Subsection A, a franchisee seeking renewal of a franchise may, on such franchisee's initiative or at the request of the Township, submit a proposal for renewal.
C.
Upon submittal by a franchisee of a proposal to the Board for renewal of a franchise, the Board shall provide prompt public notice of such proposal and, during the four-month period which begins on the submission of said proposal, renew the franchise or issue a preliminary assessment that the franchise should not be renewed and, at the request of the Board, providing prompt public notice of such proceeding, in accordance with Subsection D, to consider whether:
(1)
The franchisee has substantially complied with the material
terms of the existing franchise and with applicable law.
(2)
The quality of the franchisee's service, including
signal quality, response to consumer complaints, and billing practices, but
without regard to the mix, quality or level of cable services or other services
provided over the system, has been reasonable in light of community needs.
(3)
The franchisee has the financial, legal and technical
ability to provide the services, facilities and equipment, as set forth in
the franchisee's proposal.
(4)
The franchisee's proposal is reasonable to meet
future cable-related community needs and interests, taking into account the
cost of meeting such needs and interests.
D.
In any proceeding under Subsection C, the franchisee shall be afforded adequate notice, and the parties shall be afforded fair opportunity for full participation, including the right to introduce evidence, including evidence related to issues raised in the proceedings under Subsection A, to require the production of evidence and to question witnesses. A transcript shall be made of any such proceedings at the expense of the franchisee.
E.
At the completion of a proceeding under Subsection C, the Board shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit within 30 working days a copy of such decision to the franchisee. Such decision shall state the reasons for granting or denying the proposal for renewal.
F.
Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in Subsection C(1) through (4), pursuant to the record of the proceeding under Subsection C. The Board may not raise a denial for renewal on a failure to substantially comply with the material terms of the franchise under Subsection C(1), or on events considered under Subsection C(2) that occur after December 29, 1984, unless the Council has provided the franchisee with notice and the opportunity to cure or in any case in which it has been documented that the Council has waived its right to object or has effectively acquiesced.
G.
Any franchisee whose proposal for renewal has been denied
by a final decision of the Board made pursuant to this section, or has been
adversely affected by a failure of the Board to act in accordance with the
procedural requirements of this section, may appeal such final decision or
failure pursuant to the provisions of Section 635 of the Cable Communications
Policy Act of 1984 (codified at 47 U.S.C. § 555) and may have such
remedies as are provided for in Section 626 of said Act.
H.
Notwithstanding the provisions of Subsections A through G of this section, a franchisee may submit a proposal for the renewal of a franchise at any time. In such a case, the procedural provisions of Subsections A through G of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with Subsections A through G.
Any application or proposal for renewal shall contain the information
required by the Cable Act of 1984, as the same may be amended or modified
by any future federal statute. A renewal fee as set from time to time by resolution
of the Board of Supervisors must be submitted at the time of or prior to the
award of a renewal of a franchise.
If the Board and franchisee agree to such, and the commonwealth or federal
government does not expressly prohibit such, then arbitration may be used
to resolve any dispute that arises out of this chapter. The arbitration shall
be submitted to the American Arbitration Association and proceed in accordance
with the applicable rules and procedures of the American Arbitration Association.
A.
Subject to preemption by or other approval authority
of the FCC or other federal or state governmental entities or agencies, the
Township retains authority to provide for:
(1)
The regulation and control of any cable television system
within the geographical limits of the Township.
(2)
The award of a franchise subsequent to review of an application
or proposal by the Board.
(3)
The periodic review and/or amendment of an existing franchise.
(4)
The periodic review and/or amendment or repeal of all
or part of this chapter.
C.
Subject to preemption by or other approval authority
of the FCC or other federal or state governmental entities or agencies, the
Township assumes jurisdiction to enforce all laws and regulations relating
to cable television service within the geographical limits of the Township.
A.
A franchisee shall comply with all laws and regulations
concerning copyright and cable television.
B.
Any franchisee, its assignee or transferee shall be subject
to and expected to comply with all ordinances now or hereafter adopted and
in effect in the Township, including this chapter; provided, however, that
no ordinance hereafter adopted may impair or adversely affect the rights or
duties of either the Township or a franchisee pursuant to a franchise agreement
or the franchise in effect as of the date a franchise agreement is entered
into until such time as the term of the franchise expires.
C.
Any franchisee, its assignee or transferee shall be subject
to and expected to comply with all commonwealth and federal laws, and with
all rules issued by all applicable regulatory agencies now or hereafter in
existence.
D.
The Township and the franchisee may exclude various provisions
of this code from becoming binding or enforceable against the other by proving
as such in a franchise agreement between the Township and the franchisee.
E.
Any franchisee, its assignee or transferee shall be subject
to all lawful exercise of the Township's police power.
A.
A franchisee shall not refuse to hire or employ, nor
bar or discharge from employment nor discriminate against, any person in compensation
or in terms, conditions or privileges of employment because of age, race,
creed, color, national origin, sex, handicap, religious or political affiliation
or belief.
B.
A franchisee shall comply with Section 6334 of the Cable
Communications Policy Act of 1984 (codified at 47 U.S.C. § 554)
as it relates to equal employment opportunity of the cable television industry.
A franchisee shall not be excused from complying with any of the terms
or conditions of this chapter, amendments to this chapter or the terms or
conditions of its franchise agreement, by reason of any failure of the Township
upon any one or more occasions to insist upon, or to seek, compliance with
such terms and conditions.
A.
If the FCC, Congress, the commonwealth or any other governmental
agency with authority over cable ever abrogates, deletes, removes or otherwise
disposes of rules or standards that are referenced in this code and relied
on by a franchisee for performance, then the Board may, to the extent that
such is not inconsistent with prevailing law or regulation, reinstate such
rules and standards.
B.
Where rules and standards are reinstated, then such reinstated
rules and standards shall have the same weight and effect as they had prior
to their initial abrogation.
[Added 7-12-2005 by Ord. No. 05-07]
A.
Subdivision/land developments. In extending lines to
new subdivisions and/or land developments within the Township, each cable
operator shall accept from the developer only those easements which provide
nonexclusive rights to operate a cable system within such subdivision and/or
land development. No such easement shall prevent any other cable operator
authorized to operate within the Township, then or in the future, from using
such easement to extend other and further lines to such subdivision and/or
land development. In each new subdivision and each new land development, the
developer shall, upon notifying public utilities of the opportunity to serve
such subdivision or land development, also notify all cable operators licensed
to operate a cable system in the Township of the opportunity to install cable
facilities to serve the subdivision or land development. Each owner of a separate
tract of land of record in such subdivision or land development and all persons
within the Township shall have the right to freely choose any cable operator
permitted in the Township to serve such person with such cable operator's
cable system.
B.
Changes required by public improvements. The cable operator
shall, upon reasonable notice, and at its reasonable expense, temporarily
disconnect, relocate or remove from the street or other public place any of
its property when required by the Township by reason of traffic conditions,
public safety, street vacation, street construction, installation of sewers,
drains, water pipes, or any other type of structure or improvements by public
agencies.
C.
Requests for removal or change. The cable operator shall,
on the request of any person holding a building moving permit, temporarily
raise or lower its wires to permit the moving of said building. The expense
of such temporary removal, raising or lowering of wires shall be paid by the
person requesting the same, and the cable operator shall have the authority
to require such payment in advance. The cable operator shall be given not
less than 15 days' advance written notice of any move contemplated to arrange
for temporary wire changes.
