[HISTORY: Adopted by the Board of Supervisors
of the Township of Independence 2-27-1991 by Ord. No. 91-3. Amendments noted where
applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 355.
When not inconsistent with the context, words
used in the present tense include the future tense, words in the plural
number include the singular number, and the words in the singular
number include the plural number:
A television or radio signal that is transmitted over the
air to a wide geographic audience and is carried by a cable television
system off-the-air, by microwave or satellite link, or other means.
Any person, whether individual, business entity or institution,
who pays either monthly, yearly or special event service charges and
who lawfully receives basic cable, pay cable, pay-per-view or other
services lawfully provided by the cable television system, grantee,
regardless of whether such person occupies single-family or multiple-unit
dwellings, hotels, or motels, or carries on business or other affairs
in business establishments or institutional premises.
An electronic communications system using antennas,
coaxial or light-fiber cables, wires, microwave facilities or receivers,
transmitters, towers, waveguides, satellite communications devices
and other electronic means or devices designed and constructed for
the purpose of providing cable service(s) described as follows:
BASIC CABLE SERVICESThe level of service available to subscribers at the lowest monthly rate which includes local broadcast television or radio signals, and locally originated cable programming, if any;
PAY CABLE SERVICE(S)Programming of any nature which is not available to cable subscribers except upon payment of an additional monthly fee or fees, regardless of source, position or tier of service;
PAY-PER-SERVICE(S)Programming which cannot be received by cable subscribers without payment of a specific charge for occasional delivery of special programming events, regardless of whether special receipt devices are required.
Any other kinds of signals or programming permitted
by law or contract, regardless of source or nature, distribution method
or method of delivery to cable subscribers or engaging in any other
business or activity which employs the system and which is allowed
by law.
The Township Secretary, assistant secretary or other designation
as made by the Supervisors.
An electronic device used in the operation of the system,
either sold to subscribers or placed by grantee in dwellings, hotels,
motels, business establishments or institutional premises, which converts
electronic signals from one radio frequency to another.
The authorization granted hereunder in terms of a franchise,
right, privilege, permit, license or otherwise, which evidences the
Township's assent to the grantee's construction, operation, and maintenance
a cable television system within the Township. Any such authorization,
in whatever form granted, shall not mean and include any license or
permit required for the privilege of transacting and carrying on a
business within a Township as required by other ordinances and laws
of this Township.
The entire geographic area within the present boundaries
of the area under jurisdiction of the Township Supervisors, as designated
by the Township Supervisors; however, in the event that the franchisee
shall be unwilling or unable to provide said services to any specific
area or areas within the franchise area, as designated by the Township
Supervisors, then upon that event, after appropriate notice to franchisee,
the Supervisors may permit another company to service said area.
The person, firm or corporation granted a franchise by the
Supervisors under this chapter, or the lawful successor, transferee
or assignee of said person, firm or corporation.
All monthly service fees actually collected from cable subscribers
within a fiscal year by grantee for providing basic cable services
to cable subscribers in the franchise area.
All real, personal, tangible or intangible property owned,
installed or used within the Township by the grantee in the conduct
of a cable television system business under the authority of the franchise
granted pursuant to this chapter.
That standard which shall be applied by the Township and
Supervisors in considering renewal applications, and termination or
extension issues; namely, whether:
Grantee substantially complied with the material terms of its
franchise and with applicable laws; and
The quality of grantee'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; and
Grantee has the financial, legal, and technical ability to provide
the services, facilities, and equipment provided for in this chapter.
The surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, parkway, way, lane, public way, drive, circle or other public
right-of-way, including public utility easements, dedicated utility
strips or rights-of-way, and any temporary or permanent fixtures or
improvements located thereon, now or hereafter held by the Township
in the franchise area which shall entitle the Township and the grantee
to the use thereof for the purpose of installing, operating, repairing
and maintaining the cable television system. Said word shall also
mean any easement now or thereafter held by the Township within the
franchise area for the purpose of public travel, or for utility or
public service use, and shall be now held or hereafter held by the
Township within the franchise area, which shall within their proper
use and meaning entitle the Township and the grantee to the use thereof
for the purposes of installing or transmitting grantee's cable services
over poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, compliances, attachments and other property as may be
ordinarily necessary and pertinent to the cable television system.
Any person residing in the franchise area.
The state of Pennsylvania.
The present governing body of the Township or any future
board constituting the legislative body of the Township.
The Township of Independence in its present incorporated
form or in any later reorganized, consolidated, enlarged or reincorporated
form.
A.
There is hereby granted by the Township to a grantee
the nonexclusive franchise to engage in the business of operating
a cable television system in the franchise area, and for the purpose
to erect, install, construct, repair, replace, reconstruct, maintain
and regain in, on, over, under, upon, across and along any public
way and all extensions thereof and additions thereto in the franchise
area, such poles, wire, cable, conductors, ducts, conduits, vaults,
manholes, pedestals, amplifiers, appliances, attachments, and other
property as may be necessary and appurtenant to the cable television
system; and in addition, so to use, operate, and provide similar facilities
or properties rented or leased from other persons, including but not
limited to any public utility or similar entity permitted to do business
in the franchise area. Grantee shall be required to pay no fees or
charges, other than the franchise payment, stated hereinafter, to
any person or entity for the use of public ways within the franchise
area. No cable television system shall be allowed to occupy or use
the public ways of the franchise area or be allowed to operate without
a franchise. The grantee shall at all times during the term of this
franchise be subject to all lawful exercise of the general police
power by the Township.
B.
In the event the Township enters into a franchise,
permit, license, or other agreement of any kind with any other person
or entity other than the grantee, which contains terms more favorable
to such person or entity than those contained herein, this chapter
shall be deemed amended as of the effective date of the other franchise,
permit, license or other agreement, so as to give the grantee the
benefit of any such more favorable terms.
The franchise granted by the Supervisors under this chapter shall be for an initial 15 years from the date set forth hereinafter; provided that the initial term may be extended pursuant to the terms and conditions contained in § 139-13 and as otherwise proscribed herein.
A.
Obligations of grantee.
(1)
The grantee shall render service as required hereunder
and shall respond to complaints and make repairs as necessary. Grantee
shall assure the continuity of cable service to all cable subscribers
who are current in their payments for service, and in no event shall
grantee turn off the system except as permitted by the terms herein.
(2)
The cable television system shall be operated and
maintained by grantee at all times in substantial compliance with
all applicable filing, reporting or requirements of the Federal Communications
Commission (FCC) or other government agencies regulating cable television
generally.
(3)
The grantee's obligation to provide, repair, replace,
construct, maintain or operate cable television service shall be excused
for any period during which such service is prevented or interrupted
for any cause beyond grantee's control, including, without limitation,
acts of God, fire, flood, earthquakes, hurricane, unavoidable casualty,
extraordinary delays in transportation, strikes, lockouts, picketing,
boycotts, embargoes, government orders or other requirements, acts
of civil or military authorities, governmental restrictions, energy
shortages, regulations or controls, war-related shortages, alien invasions,
acts or omissions of carriers, or activities or other emergency conditions
including weather conditions incompatible with good quality workmanship
or operations.
(4)
If available, the grantee shall provide to any cable
subscriber so requesting a parental guidance or lockout device which
shall permit the subscriber, at his or her option and at his or her
costs, to prohibit a particular cable service during periods selected
by that subscriber. The grantee shall advise all cable subscribers
regarding the availability of this device and a charge for any such
device may be imposed.
(5)
If not prohibited by law or regulation, at the request
of the Township Supervisors, the grantee shall provide a list of all
of the names and addresses of existing subscribers within the Township
as of the date of said request and upon failure to do so, the grantee
shall forfeit the bond referred to under this chapter and, said requirement
shall be a condition pertaining to said bond. In the event that said
information may not be revealed pursuant to law or regulation, then
if otherwise permitted thereby, the grantee shall so advise the Supervisors
at the time of said request, but shall provide such information as
otherwise may be available and/or revealable pursuant to law or regulation,
such as, but not limited to, the number of subscribers, the number
of homes, the number of parties receiving services, and the amount
of connections or hookups.
B.
Obligation of Township.
(1)
It being in the interest of grantee to maintain a
good relationship with the residents of the Township, the Township
shall assist and cooperate with grantee in maintaining such a relationship.
(2)
If it becomes legally or practically infeasible for
grantee (franchisee-company) to use certain public ways, particularly
public utility easements across private property or dedicated utility
strips, then the Township shall cooperate with grantee in obtaining
the necessary authority to cross, use or otherwise employ rights-of-way
in installing and maintaining its system, except that under no circumstances
shall the Township be required to make any monetary contribution or
payment.
A.
All transmission and distribution structures, poles,
lines, and equipment installed or erected by grantee within the Township
shall be so located as to cause a minimum of interference with the
proper use of public ways or streets and with the rights and reasonable
convenience of property owners who own property that adjoins any of
said public ways.
B.
In case of disturbance or damage of or to any public
way or street or the like by grantee or as a result of grantee's use
of the same, grantee shall, at its own expense, replace, restore and
otherwise repair such public way, street or the like to as good a
condition as the same existed prior to the disturbance or damage thereof.
C.
Upon its receipt of reasonable advance notice, the
grantee shall, at its own expense, protect, support, temporarily disconnect,
relocate in the same street or other public place, or remove from
the street or other public place, any property of the grantee when
lawfully required by Township by reason of traffic conditions, public
safety, street abandonment, freeway and street construction, change
or establishment of street grade, installation of sewers, gas or water
pipes, or any other type of structures or improvements by the Township;
but, grantee shall in all cases have the right of abandonment of its
property, subject to Township ordinances, and if public funds are
available to any company using such street, easement or right-of-way
for the purpose of defraying the cost of any of the foregoing, such
funds shall also be made available to grantee.
D.
The grantee shall on 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, provided:
E.
The grantee shall have the authority to trim trees
or other natural growth overhanging any of its cables or other facilities
in the franchise area so as to prevent branches from coming in contact
with the grantee's wires and cables or other equipment. After completion
of construction of the system, grantee may trim trees or natural growth
overhanging the facilities, and shall be permitted to charge persons
who own or are responsible for such trees or natural growth for the
cost of such trimming if and only if similar charges are assessed
by and paid to the utilities or the Township for the same activity.
In any event, grantee shall compensate the Township or property owner
for, or shall replace at its own cost and expense, all trees or shrubs
damaged as a result of any construction of the system undertaken by
grantee.
F.
Subject to any applicable state or federal regulations
or tariffs, the Township shall have the right to make additional use,
for any public purpose, of any poles or conduits controlled or maintained
exclusively by or for grantee in any street; provided that such use
by the Township does not interfere with a current or future use by
grantee; and the Township holds grantee harmless against and from
all claims, demands, costs or liabilities of every kind and nature
whatsoever arising out of such use of said poles or conduits; and
if the use of the same by the Township effects the use of the same
by grantee, then and only in the event of the same the Township shall
pay a rental fee or otherwise compensate the grantee for the use of
such poles or conduit.
A.
Construction, installation and maintenance of the
television system shall be performed in an orderly and workmanlike
manner. All cables and wires shall be installed, where possible, parallel
with electric and telephone lines. All such work shall be performed
in accordance with applicable safety code or technical requirements,
including but not limited to National Electrical Safety Code (National
Bureau of Standards); National Electrical Code (National Bureau of
Fire Underwriters); Bell System Code of Pole Line Construction; and
applicable FCC or other federal, state and local regulations.
B.
In any event, the system shall not endanger or interfere
with the safety of persons or property in the franchise area. In particular,
grantee shall substantially comply with all local, state or federal
laws or regulations which govern cable plant signal leakage or interference
with communications media. Any antenna structure used in the cable
television system shall comply with all construction, marking, and
lighting of antenna structure requirements of the United States Department
of Transportation. All working facilities, conditions, and procedures
used during construction, installation and maintenance of the cable
television system shall comply with the standards of the Occupational
Safety and Health Administration.
A.
In those areas of the Township where all of the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, or
hereafter are placed underground, the grantee likewise shall construct,
operate and maintain all of its transmission and distribution facilities
underground; provided that such facilities are actually capable of
receiving grantee's cable and other equipment without technical degradation
of the system's signal quality. In those areas where the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services are both aerial and
underground, grantee shall have the sole discretion to construct,
operate and maintain all of its transmission and distribution facilities,
or any part thereof, aerial or underground. Nothing contained in this
chapter shall require grantee to construct, operate, and maintain
underground any ground-mounted appurtenances such as subscriber taps,
line extenders, system passive devices (splitters, directional couplers),
amplifiers, power supplies, pedestals, or other related equipment.
B.
The grantee is hereby authorized to extend the system
within the area when, where and to the extent that such extension
is technically and economically feasible.
C.
Whenever the grantee shall have received written requests,
with any requested monetary deposits for cable service from at least
25 subscribers within 1,612 cable meters (5,280 cable feet) of the
same aerial trunk cable, or from at least 30 subscribers within 1,612
cable meters (5,280 cable feet) of the same underground trunk cable,
it shall extend its system to such subscribers solely for the usual
connection and service fees for all subscribers, provided that such
extension is technically and economically feasible. The 1,612 meters
shall be measured in extension length of grantee's cable required
for service located within the public way or easement and shall not
include the length of the necessary drop to the subscriber's home
or premises. Notwithstanding the above, the grantee shall not be required
to provide service to a subscriber where a drop line from the feeder
cable to the subscriber's house or premises exceeds 76.20 cable meters
(250 cable feet), until it is technically and economically feasible
to do so.
D.
No person in the grantee's service area shall be arbitrarily refused service; but in recognition of the capital costs involved in unusual circumstances, including, without limitation, instances when subscriber density is less than provided for in Subsection C above, cable service may be made available in such lower-density areas on the basis of the payment in advance of costs of materials, labor and obtaining easement by the parties requesting cable service in order to prevent cable subscribers in more densely populated areas from subsidizing services to subscribers residing in low-density areas.
(1)
For all residential structures hereinafter erected
which are to be served by underground utilities, the developer of
the subdivision or development may acquire cable service for such
development under the following conditions:
(a)
The entire cost of such undergrounding, from
the boundary of the new subdivision or, in the case of an individual
structure which is not a part of an existing subdivision, from the
lot line, to each building, shall be borne by the developer, subdivider
or owner of the property, including the reimbursement to the grantee
of its share of all trenching costs, materials and labor; and
(b)
Developer, at its expense, shall perform any
trenching or backfilling necessary in preparation for the provision
of cable service, including the furnishing of any backfill material
required to be imported, and will furnish and install for the grantee
any necessary distribution conduits and substructures, including pedestals,
required in preparation for the provision of cable service and in
accordance with the grantee's plans and specifications.
(2)
Grantee shall not be obligated to provide cable service
to such new development unless such developer or owner agree to bear
the costs. However, grantee shall have the right to provide cable
service to all newly developed areas of the Township at its own expense,
regardless of whether a developer or owner cooperates with grantee
or pays grantee for the expenses of installing cable on their property.
(3)
Grantee shall provide plans and specifications to
a developer, and shall inspect the facilities installed hereunder,
and certify to the Township prior to final approval of the subdivision
or development that the facilities installed in the development were
properly installed. All such facilities installed hereunder shall
be owned, operated, and maintained by grantee.
(4)
With respect to any subdivision plan which requires
the approval of the Township, the Township shall require the developer
to locate and identify on such plan easements which have been dedicated
or are to be dedicated to public use, in order to provide grantee
with the right to construct, install and maintain, on the land identified
in such plan, any equipment necessary to provide cable services to
each dwelling unit in the subdivision.
A.
Within 60 days after acceptance of the franchise,
the grantee shall proceed with due diligence to apply for all necessary
permits and authorizations which are required in the conduct of its
business, including but not limited to any utility joint use attachment
agreements, microwave carrier licenses, and any other permits, licenses
and authorizations to be granted by duly constituted regulatory agencies
having jurisdiction over the operation of cable television systems,
or associated microwave transmission facilities.
B.
Within 90 days after obtaining all necessary permits
licenses and authorizations, including right of access and clearances
to use all necessary poles and conduits, grantee shall commence construction
of the cable television system.
C.
Within 90 days after the commencement of construction,
grantee shall proceed to energize complete portions of the system
and begin to offer service to 100% of the potential subscribers in
the franchise area. Completion of the construction shall be pursued
with reasonable diligence thereafter, so that cable service to those
areas of the franchise area required to be served pursuant to this
chapter shall be so provided within 90 days after receiving all authorizations
mentioned herein; provided, however, that grantee shall in all events
substantially meet and comply with any construction requirements set
down by the FCC or any other applicable regulatory authority.
D.
The grantee may request an extension of time to complete
the construction of the cable television system for events beyond
the control of grantee, including but not limited to acts of God,
strikes of material suppliers, construction contract delays which
are beyond the control of the grantee, or similar events. A request
for extension shall be made within 20 days after the grantee has actual
or constructive notice of such event. The Township shall not unreasonably
withhold its consent to such request to extension.
E.
These provisions apply to new construction and are
not intended to regulate existing facilities.
A.
In consideration of the granting and exercise of this
franchise to use the public ways, for the operation of a cable television
system, and to help defray some of the costs of regulation of the
system, grantee shall pay to the Township, during the initial term
of the franchise, a fee equal to 3% of its gross receipts as determined
at the end of the franchisee's tax year. For the first year of the
franchise, said amount shall be calculated as of the 31st of December,
first year. Said franchise fee of 3% shall remain in full force and
effect during the initial term of the franchise. If, however, the
franchisee should increase its rates, then and in that event, the
franchise fee paid to the Township shall also be increased in an amount
as determined by the Board of Supervisors wherein the same shall not
exceed 5% of gross receipts unless the regulatory agencies, departments,
or bureaus and/or laws and regulations permit a higher franchise fee.
Therefore, in the event that the franchisee should increase its rates,
the Supervisor shall have full authority and discretion to increase
said franchise fee to an amount as deemed appropriate by them within
their sole discretion as long as the same does not violate any rule
or law pertaining to the regulation of the same up to a maximum of
5% of gross receipts. Any increase in the franchise fee made by the
Supervisors and/or Township shall be effective 30 days after the date
of its enactment, ordination, and/or establishment and therein the
franchisee shall pay the franchise fee effective the date that the
same is instituted.
B.
The frantee shall continue to pay the Township the
franchise fee of 3% (or higher if otherwise permitted) on gross receipts
unless notified by the Township as follows:
(1)
After execution of an agreement for the franchise
and/or the granting of a franchise and/or of a franchise permit, the
Township may, at any time during the term of the franchise, or extensions
thereof, on its own initiative, refrain from collecting a franchise
fee from the grantee, reduce the amount of the franchise fee it collects
from the grantee, or increase the amount of the franchise fee it collects
from the grantee up to a maximum of 5% of the gross receipts of grantee,
subject, however, to the same being permitted by law or regulation
and as otherwise regulated under this chapter.
(2)
The franchise payments shall be made to the Township annually within 120 days after the expiration of any calendar year or portion thereof during which the franchise is in force. After notice to grantee delivered pursuant to § 139-17 hereof that a payment is late, the Township shall be entitled to impose on grantee a penalty in the amount of $100 per day for each day in excess of the one-hundred-twenty-day period in which grantee willfully fails, refuses or neglects to pay any undisputed portion of the percentage due and owing.
(3)
At the time of payment, grantee shall provide the
Township an annual summary of gross receipts received during the applicable
year.
A.
Performance bond to Township.
(1)
Upon being granted a franchise, and after the filing
of the acceptances required under this chapter, the grantee shall
file with the Township Secretary, and shall maintain in full force
and effect, during the term hereof, a corporate bond or other adequate
surety agreement in the amount of $15,000; subject, however to the
limitation that if the initial application is for 100 homes or less,
the amount of said bond or surety shall be $5,000. The bond or agreement
shall be so conditioned, that in the event that grantee shall fail
to substantially comply with any one or more of the material provisions
of this chapter or of such franchise, then there shall be recoverable
jointly and severally from the principal and surety any damages or
loss, or costs suffered by the Township, as a result thereof, including
attorney's fees and costs of any action or proceeding, and cost of
including the full amount of any compensation, indemnification, cost
of removal or abandonment of any property or other costs which may
be in default, up to the full principal amount of such bond. Said
condition shall be a continuing obligation during the entire term
of such franchise and thereafter until grantee shall have satisfied
in full any and all obligations to the Township which arise out of
or pertaining to said franchise.
(2)
For each additional area of the franchise or extensions
thereof, the grantee shall file and/or provide and maintain a corporate
bond or other adequate security agreement in an amount as set by the
Supervisors or subject to the approval of the Supervisors, the franchisee
may obtain an extension of the original bond for purposes of covering
said additional area and/or extension thereof.
B.
Hold harmless.
(1)
The grantee shall hold the Township, its officers,
boards, and employees harmless from liability for damages or claims
for damages and for any liability or claims resulting from property,
damage or bodily injury (including accidental death), which arise
out of the grantee's negligent operations in conducting a cable television
business in the Township.
(2)
The Township shall hold grantee, its officers, directors,
employees, subscribers, assigns and successors, harmless from liability
for damages, claims for damages or liability or claims resulting from
bodily injury (including accidental death), which arise out of the
Township's, its employees' or agents' negligence in dealing with or
in any way handling or affecting grantee's real or personal property
used or usable in the cable television system in the franchise area.
C.
Insurance required. Upon being granted a franchise,
and after the filing of the acceptance required under this section
hereof, the grantee shall file with the Township Secretary, and shall
thereafter maintain in full force and effect at its own cost and expense,
during the term hereof, general comprehensive liability insurance
in the amount of $1,000,000 for bodily injuries (including accidental
death) to any person and subject to the same limit for each person
in an amount not less than $500,000 on account of any one occurrence,
and property damage liability insurance in an amount not less than
$500,000 resulting from any one occurrence.
(1)
At the expiration of the initial term of the franchise, 15 years, whereafter the same is renewed or extended pursuant to § 139-13 hereafter, the franchise fee shall be reestablished at said time within the sole discretion of the Township Supervisors subject to the rules and regulations of the Federal Communications Commission and/or the Commonwealth of Pennsylvania and/or the United States of America.
The franchise granted herein shall not be sold,
assigned or transferred, in whole or in part, either by force or involuntary
sale, or by voluntary sale, merger, consolidation or otherwise, other
than to a person or entity controlling, controlled by or under common
control with the grantee, without prior consent of the Township Supervisors,
either expressed by resolution, or by informal consent procedures.
The consent of the Township Supervisors shall not be unreasonably
withheld or delayed; provided, however, that the prospective assignee
or transferee must agree in writing to comply with all the provisions
of this chapter; and provided, further, that no such consent shall
be required for a transfer in trust, by mortgage, or by other hypothecation,
in whole or in part, or to assign rights in the cable television system
to secure indebtedness.
A schedule setting forth the initial rates,
services and charges to be paid by subscribers for basic cable service,
including connection and service rates, shall be attached to the franchise
agreement. Rates for motels, hotels, rooming houses, trailer courts,
hospitals and rest homes are to be negotiated. Such rates, services
and charges are subject to change by grantee, and shall not be regulated
by the Township unless authorized by federal and/or state laws.
A.
Extension. The Township may extend the franchise for an additional five years beyond the initial 15 years if grantee so requests. Within no more than 180 days of the expiration date of the initial term, grantee shall, at its option, notify the Township Secretary in writing that grantee wishes to petition for a five-year extension. The Township shall then set a date for a Supervisor's meeting which the Township Secretary shall advertise in a newspaper of general circulation at least once in the 10 days prior to the meeting. At said meeting, the Supervisors shall hear the petition of grantee, and any comments from residents of the Township on the issues raised pursuant to the public interest standard contained in § 139-1 hereof. If the Supervisors find that the public interest standards will be met by a five-year extension of the initial term, the Supervisors shall grant grantee's petition. If the Supervisors deny the petition, they shall give their reasons in writing within 30 days after the meeting, and shall provide grantee with a copy of the decision within two business days of its publication.
B.
Renewal of franchise. Prior to the expiration of the
initial term of the franchise granted hereunder or any extension thereof,
the Township Supervisors may consider an application by grantee for
renewal of the franchise for an additional ten-year term, if, in the
opinion of the Supervisors, such renewal is in the public interest.
The procedure to consider such a renewal, unless specifically prohibited
by state or federal rule and/or law or regulation, shall be as follows:
(1)
Prior to the expiration of the initial term of the
franchise or any extension thereof, grantee shall petition the Supervisors
in writing for renewal of the franchise.
(2)
Within 30 days after receipt by the Supervisors of
grantee's petition for renewal, the Supervisors shall hold a meeting
to consider the renewal petition, and the Township Secretary shall
publish notice of said meeting, its time, place, subject matter and
parties entitled to be heard at the meeting, in a newspaper of general
circulation at least once in 10 days immediately prior to the public
meeting.
(3)
At the meeting, the Supervisors shall hear representatives
of grantee and interested residents on any issues raised pursuant
to the public interest standard.
(4)
The Supervisors shall make its decision on the grantee's
petition for renewal, and shall publish a written determination stating
the reasons for renewal or nonrenewal all within 30 days after the
meeting is held. Grantee shall be provided with a copy of the written
determination within two business days after it is published.
(5)
If the Supervisors find renewal would serve the public
interest, the grantee shall be entitled to a renewal of the franchise
and the Supervisors shall enter into negotiations with grantee for
amendments to the expired franchise or for a new franchise. If the
Supervisors find that nonrenewal serves the public interest, then
the procedures set forth herein shall apply.
C.
Termination. The Township may terminate a franchise
in the event of the willful failure, refusal or neglect by grantee
to substantially comply with any material requirement or limitation
contained in this chapter. The Township shall comply with the following
procedures:
(1)
The Supervisors shall, with advise of legal counsel,
make a written determination that after reasonable investigation it
appears that grantee has willfully failed, refused or neglected to
substantially comply with the material provisions of this chapter.
However, the Supervisors shall not be justified in determining that
an apparent violation by grantee of this chapter exists, unless it
also appears that there is no reasonable explanation, excuse or justification
for such apparent violation. Further, a dispute between the Township
and grantee over policies, practices or procedures which are not clearly
stated in or based on the language of this chapter shall not be deemed
a sufficient basis for a determination of an apparent violation.
(2)
If the Supervisors find good cause to make its determination
on the standards set forth above, then it shall give written notice
to grantee stating clearly its factual and legal basis for such determination.
Grantee shall then have a period of 30 days after its receipt of such
notice in which to comply with the provision. If the apparent violation
is not remedied within the thirty-day period, the Township Supervisors
may order the matter of apparent violation to be brought up for discussion
at a regularly scheduled meeting. Grantee shall be served with notice
at least 30 days prior to the meeting as to the topic, time, place
and procedure for the meeting, and the same shall be publicized by
the Township Secretary, at least once in the 10 days before such meeting,
in a newspaper of general circulation in the franchise area.
(3)
At the meeting, the Supervisors shall permit representatives
of grantee to be heard, together with any residents who have requested
to be heard on the topic of the apparent violation. Based on the facts
and arguments of grantee, any relevant factual presentations of residents,
and the Supervisors' own investigation, the Supervisors shall make
a decision whether the apparent violation was in fact, a willful failure,
refusal or neglect to substantially comply with a material provision
of the chapter. Such decision shall be in writing stating clearly
the factual and legal basis for the decision, shall be rendered and
made public within 30 days of the meeting, and grantee shall be provided
a copy thereof within two business days, after the decision is published.
(4)
If the Supervisors shall determine that such willful
failure, refusal or neglect by the grantee was not in the public interest
and was without just cause, then the Supervisors may, by resolution,
declare that the franchise of such grantee shall be terminated and
bond forfeited unless the grantee shall comply with the violated provision
within such period as the Supervisors may fix.
D.
Procedure in event of termination, nonrenewal or denial
of extension.
(1)
If grantee disagrees with the Supervisor's determination
as to termination, renewal or extension, and chooses not to comply
with the material provision at issue, or does comply under protest,
then grantee may pursue any and all equitable or legal means of judicial
review. If grantee seeks judicial relief in the form of judicial stay,
injunction or other temporary restraint of the effectiveness of the
Supervisor's decision, both the Township and the Supervisors agree
not to oppose unnecessarily grantee's pursuit of such relief.
(2)
Pending a final disposition of grantee's judicial
review, grantee shall have the right to continue the business of providing
cable service to its subscribers, may receive revenue and profits
from such business, and shall in all ways be considered by the Township
as having a claim of right to continue as the grantee, provided that
grantee shall continue to comply with the material provision of this
chapter which are not in dispute. (Compliance by grantee with material
provisions in dispute shall not be construed as an admission of liability.)
(3)
In the event grantee is ultimately unsuccessful in
pursuit of its judicial remedies, or if grantee is permitted to and
does not comply with any final determination, then grantee shall commence
immediately, after a judicial mandate that has been issued and entered
on the records of the court, to solicit buyers for the cable television
system, and shall use best efforts to sell said system. In the event
grantee is unable to find, after its best efforts, a bona fide buyer
who will pay a fair market price for the system, then grantee shall
have the right to shut down and remove any and all of the equipment,
property or other facilities making up the cable television system
in the franchise area, all to be accomplished within 180 days after
a final order is issued by a court, or by the Supervisors in the event
grantee chooses not to seek judicial review of the Supervisors' final
determination. Grantee may continue to operate the system within such
one-hundred-eighty-day period, and until it is shut down and removed.
However, at grantee's sole option, it may abandon some or all of the
equipment, property or facilities of the cable television system;
but in so doing, grantee relinquishes all right to compensation by
the Township or any third party using or taking over such system after
grantee has abandoned it.
A.
When not otherwise prescribed herein, all matters
herein required to be filed with the Township, shall be filed with
the Township Secretary.
B.
Outlets.
(1)
The grantee shall provide without charge one outlet
of basic cable service to each governmental office building, fire
station, police station, and public school building that is passed
by its cable television system. Users of such outlets shall hold grantee
harmless from any and all liability or claims arising out of their
use of such outlets.
(2)
Notwithstanding the above, the grantee shall not be
required to provide an outlet to such buildings where the drop line
from the feeder cable to said buildings or premises exceeds 76.20
cable meters (250 cable feet) until it is technically and economically
feasible to do so. In the event that additional outlets for basic
cable are provided to such buildings, the building owner shall pay
the usual installation and service fees associated therewith.
C.
In the case of any life-threatening emergency or disaster,
the grantee shall make available its facilities to the Washington
County Emergency Service Office to provide emergency information and
instructions during the emergency or disaster period. The Township
shall hold the grantee, its agent, employees, officers, and assigns
harmless from any claims arising out of the emergency use of its facilities
in accordance with this provision to the extent that the same was
or were attributable to the acts and/or control of or by the Township.
D.
Grantee shall be prohibited from directly or indirectly
initiating or using any form, procedure or device for procuring information
or data from subscribers' premises by use of the system without prior
written authorization from each subscriber so affected. "Authorization"
shall mean written approval from the subscriber of the specific use
or purpose for which the information is sought. Further, it shall
be unlawful for the grantee, without such authorization, to activate
or utilize any transmission path from the subscriber's premises, in
a manner which invades subscriber's right of privacy, or for which
grantee has no authorization. However, grantee shall have the right
to utilize any transmission path to verify the technical integrity
and quality of performance of the cable television system. The provisions
of this section shall not apply to the collection of information solely
for billing and collection purposes or cable related needs or services
provided by grantee or as otherwise allowed by law.
E.
If the Federal Communications Commission, or any other
federal or state body or agency shall now or hereafter exercise any
paramount jurisdiction over the subject matter of this chapter, then
to the extent such jurisdiction shall preempt or preclude the exercise
of like jurisdiction by the Township, jurisdiction of the Township
shall cease and no longer exists.
F.
No person, firm or corporation within the franchise area of the grantee, and where trunk lines are in place, pursuant to §§ 139-4 and 139-5 hereof, shall be refused cable service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charge.
G.
If at any time the grantee's cable television system
or other equipment is disturbed, damaged, or severed by a third party,
the cost of repair shall be paid by the party responsible for said
damage. The grantee may charge the responsible party for the cost
of labor and materials expended by grantee to repair said damage or
replace damaged cable plant. The Township will cooperate with the
grantee in enforcing any charge or penalty arising from such damage
to grantee's property.
H.
In the event that future legislation or regulation
is enacted at the federal or state level, grantee and the Township
agree to abide by such new legislation or regulation, and each party
will have all rights, privileges, duties and obligations provided
for in such new legislation or regulation. To the extent that future
legislation or regulation enacted by the federal or state governments
should increase the rights of a municipality to regulated minister
and control cable television systems and/or franchises or the like,
this chapter and/or any amendments and/or any franchise agreements
entered into pursuant to this chapter or any amendments thereto, may
be modified, altered or amended by the Supervisors pursuant to the
discretion leeway authority and/or powers authorized thereby upon
proper and timely notice to the franchisee.
The grantee shall substantially comply with
all valid and applicable requirements of federal or state government
regarding equal employment policy and practice.
A.
From and after the effective date of this chapter,
it shall be unlawful for any person to construct, install or maintain
within any public way in the Township, or within any other public
property of the Township, or within any privately owned area within
the Township which has not yet become a public way but is designated
or delineated as a proposed public way on any tentative subdivision
map approved by the Township, any equipment or facilities for distributing
any television signals or radio signals through a cable television
system, unless a franchise authorizing such use of such public way
or property or area has first been obtained pursuant to the provisions
of this chapter, and unless such franchise is in full force and effect.
B.
It shall be a summary offense for any person, firm
or corporation to create or make sure use of an unauthorized connection,
whether physically, electrically, acoustically, inductively or otherwise,
with any part of the franchised cable television system within this
Township for the purpose of enabling such person, firm or corporation
or third parties to receive or use any cable services without payment
to the grantee.
C.
It shall be a summary offense for any person without
the consent of the grantee, to willfully tamper with, remove or injure
any property, equipment or part of the cable television system or
any means for receiving cable services.
D.
Any person who violates or permits a violation of
this chapter shall, upon conviction in a summary proceeding brought
before a Magisterial District Judge under the Pennsylvania Rules of
Criminal Procedure, be guilty of a summary offense and shall be punishable
by a fine of not less than $50 nor more than $1,000, plus all costs
of prosecution, including, but not limited to, attorneys' fees, and
in default of payment thereof, shall be imprisoned for a term not
to exceed 90 days. Each day or portion thereof that such violation
continues or is permitted to continue shall constitute a separate
offense, and each section of this chapter that is violated shall also
constitute a separate offense. All fines and penalties collected for
the violation of this chapter shall be paid to the Township Treasurer.[1]
E.
The Township shall cause its legal enforcement staff
to cooperate fully in the enforcement, prosecution and conviction
of persons found to have violated the criminal law applicable to cable
service and the cable television system.
A.
All notices required herein shall be in writing, and
shall be deemed to have been duly given to the required party three
business days after having been posted in a properly sealed and correctly
addressed envelope by certified or registered mail, postage prepaid,
return receipt requested, at a post office or branch thereof regularly
maintained by the U.S. Postal Service. The notices shall be addressed
as follows:
|
If to Township:
| |
|---|---|
|
Township Secretary
Independence Township
Main Street
Avella, PA 15312
| |
|
If to grantee:
As supplied by grantee
| |
|
With a copy to:
| |
|
Township Solicitor
Robert N. Clarke, P.C.
15 West Beau Street
Washington, PA 15301
| |
|
Or successor
|
B.
Parties may designate other addresses from time to
time by giving due notice to each other.
A.
The franchise agreement entered into between the Township
and the franchisee shall designate the franchise area, the dates of
beginning and completion of construction work, when weekly reports
regarding electronic rebuilds and FCC applications for additional
satellite services or services are to be presented to the Township
Secretary, a listing of what service that shall be available, which
shall include the call letters, channel number, origination point,
and network and when the same shall become available, and a statement
as to what is contained in the basic cable services package. The grantee
shall have the right to make changes in its satellite programming
if it is unable to negotiate a contract with the program suppliers
or if a program supplier goes out of business or specific programming
is no longer economically feasible.
B.
Rates.
(1)
The rates referred to in this chapter shall be established
in the underlying franchise agreement based on the following categories:
|
Commission Fees:
| |
|
First outlet
| |
|
Each additional outlet
| |
|
Relocation of an outlet
| |
|
Reconnection of an outlet
|
(2)
The rates for said items, as referred to above, shall be specified in the franchise agreement. The initial rates, as established by the franchise agreement, may be increased annually by a maximum of 5%; provided, however, that this percentage does not exceed the percentage increase of the consumer price index for all items for the Pittsburgh area for the proceeding 12 months subject to the terms and conditions contained in § 139-12 above and is otherwise permitted by law or regulation.
(3)
Adjustments which exceed the five-percent limit may
be increased only with prior approval of the Supervisors after a public
hearing if the FCC permits Supervisor approval in said matter. The
Supervisors' approval of said rate increase shall not be unreasonably
withheld.
(4)
The grantee shall have the right to negotiate separate
rates with the owners of motels, hotels, rooming houses, apartment
houses, trailer courts, hospitals and rest homes.
(5)
Pay cable services.
(a)
In addition, the grantee may make available to its subscribers one
or more of the following pay TV cable services:
[1]
Home Box Office, Showtime, Disney Channel, Cinemax, ESPN, The Movie
Channel, and the like.
(b)
As to said pay cable services, the grantee is reserved the right
to establish the monthly rates for said services, subject to the approval
of the Supervisors, if permitted by law, whose approval shall not
be unreasonably withheld.
A franchise agreement shall be entered into
between the Township and the grantee or franchisee which shall encompass
the terms contained in this chapter, wherein no franchise granted
pursuant to this chapter shall become effective until said franchise
agreement has been duly executed and approved by the Supervisors.
By the enactment of this chapter and the execution
of any franchise agreement, the Township and/or Supervisors is not
binding the Township nor agreeing on behalf of the Township to commence,
prosecute or maintain any action on behalf of the grantee for purposes
of obtaining rights-of-way through eminent domain or otherwise.
