Borough of Conway, PA
Beaver County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Conway 11-8-1982 by Ord. No. 390, approved 11-8-1982; amended in its entirety 4-4-2001 by Ord. No. 469, approved 4-4-2001. Subsequent amendments noted where applicable.]

§ 113-1
Word usage; definitions. 

§ 113-2
Grant of franchise; term. 

§ 113-3
Standards of service. 

§ 113-4
Aerial and underground construction. 

§ 113-5
Subscriber charges for extensions of service. 

§ 113-6
Service to public buildings. 

§ 113-7
Emergency use. 

§ 113-8
Franchise fee. 

§ 113-9
Franchise fee adjustment in competitive environment. 

§ 113-10
Rates and charges. 

§ 113-11
Renewal of franchise. 

§ 113-12
Conditions of sale. 

§ 113-13
Transfer of franchise. 

§ 113-14
Books and records. 

§ 113-15
Insurance requirements. 

§ 113-16
Indemnification. 

§ 113-17
Bond and other surety. 

§ 113-18
Notice of violation. 

§ 113-19
Grantee's right to cure or respond. 

§ 113-20
Public hearing. 

§ 113-21
Enforcement. 

§ 113-22
Actions of parties. 

§ 113-23
Actions of amendment. 

§ 113-24
Force majeure. 

§ 113-25
Equal protection. 

§ 113-26
Notice. 

§ 113-27
Descriptive headings. 

§ 113-28
Applicable laws and ordinances. 

§ 113-29
Documents incorporated and made part hereof. 

§ 113-30
Repealer. 

§ 113-31
Severability. 

A. 

Terms. For the purpose of this franchise, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural tense include the singular number and words in the singular number include the plural number.

B. 

As used in this chapter, the following terms shall have the meanings indicated:

BASIC CABLE
The lowest-priced tier of service that includes the retransmission of the local broadcast television signals.
CABLE ACT
Collectively means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996.
(1) 

The one-way transmission to subscribers of video programming or other programming service; and

(2) 

Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

CABLE SYSTEM
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 terms do not include:
(1) 

A facility that serves only to retransmit the television signals over one or more television broadcast stations;

(2) 

A facility that serves subscribers without using any public way;

(3) 

A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Cable Act, except that such facility shall be considered a cable system [other than for purposes of Section 621(c)] to the extent that 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;

(4) 

An open video system that complies with Section 653 of Title VI of the Cable Act; or

(5) 

Any facility of any electric utility solely used for operating the electric utility system.

FCC
The Federal Communications Commission, or successor of governmental entity thereto.
FRANCHISE
The initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system.
GRANTEE
TCI of Pennsylvania, Inc., or lawful successor, transferee or assignee thereof.
GROSS CABLE RECEIPTS
Any revenue received by the grantee from the grantee's use of the cable system to provide Cable Services in the service area; provided, however, that such phrase shall not include any:
(1) 

Tax, fee or assessment of any kind imposed by the LFA or other governmental entity on a cable operator, or subscriber, or both, solely because of their status as such;

(2) 

Tax, fee or assessment of general applicability which is unduly discriminatory against a cable operator or subscribers (including any such tax, fee or assessment imposed, both on utilities and cable operators and their services); and

(3) 

Other special tax, assessment or fee such as a business, occupation and entertainment tax. Exhibit A enumerates specific receipts.

Editor's Note: Exhibit A is on file in the Borough offices.

LOCAL FRANCHISING AUTHORITY (LFA)
The Borough of Conway.
PERSON
An individual, partnership, association, joint stock company, trust, corporation or governmental agency.
PUBLIC WAY
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, but not limited to, public easements, dedicated utility strips, or right-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the LFA in the Service Area which shall entitle the LFA and grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the cable system. "Public way" shall also mean any easement now or hereafter held by the LFA within the Service Area for the purpose of public travel, or for the utility or public service use dedicated for the compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the LFA and the grantee to use thereof for the purposes of installing and operating the grantee's cable system over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to the cable system.
SERVICE AREA
The present municipal boundaries of the LFA, and may include additions thereto by annexation or other legal means.
SUBSCRIBER
A person who lawfully receives services of the cable system with the grantee's express permission.
A. 

The LFA hereby grants the grantee a nonexclusive franchise which authorizes the grantee to construct and operate a cable system in, along, among, upon, across, above, over, under or in manner connected with the public ways within the service area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across or along any public way and all extensions thereof, and additions thereto, such as poles, wires, cables, conductors, ducts, conduit, vaults, manholes, pedestals, amplifiers, appliances, attachments and other related property or equipment as may be necessary or appurtenant to the cable system. Nothing in this franchise shall be construed to prohibit grantee from offering any service over its cable system that is not prohibited by federal and state law.

B. 

Term. The franchise granted hereunder shall be for an initial term of 10 years commencing on the sixth day of December 2000, and concluding at midnight on the fifth day of December 2010, unless otherwise lawfully terminated in accordance with the terms of this franchise.

A. 

The cable system operating in the service area is a hybrid fiber coaxial (HFC) design, completed in 1997. The system employs both analog and digital technology, to perform at a level which distributes in excess of 100 programming services. The grantee may, throughout the term of this franchise, provide additional programming services as market and economic conditions warrant.

B. 

Conditions of street occupancy. All transmission and distributions structures, poles, other lines and equipment installed or erected by the grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of public ways and with the rights and reasonable convenience of property owners who own property that adjoins any of such public ways. Except for existing facilities, the grantee shall not place, or caused to be placed, any transmission and distribution structures, poles, other lines or other equipment above, over, under, across, through or in any other way connected with the public ways of the municipality without first obtaining written approval of the LFA.

C. 

Restoration of public ways. If during the course of the grantee's construction, operation or maintenance of the cable system there occurs a disturbance of any public way by the grantee, it shall, at its expense, replace and restore such public way to a condition reasonably comparable to the condition of the public way existing immediately prior to such disturbance.

D. 

Relocation at the request of the LFA. Upon its receipt of reasonable advance notice, not to be less than five business days, the grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the public way, or remove from the public way, any property of the grantee when lawfully required by the LFA by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes or any other type of structures or improvements by the LFA; provided, however, that the grantee shall have the option to abandon underground installations that do not pose any safety hazard, do not deface the environment and do not interfere with the plans of the LFA or property owners. If public funds are available for the purpose of defraying the cost of any of the foregoing, the LFA shall make application for such funds on behalf of the grantee.

E. 

Relocation at the request of third party. The grantee shall, on the request of any person holding a requisite lawful permit issued by the LFA, temporarily raise or lower its wires to permit the moving of any equipment, building material or otherwise, provided that:

(1) 

The expense of such raising or lowering of wires is paid by said person, including, if required by the grantee, making such payment in advance; and

(2) 

The grantee is given not less than 10 business days' advance written notice to arrange for such temporary wire changes.

F. 

Trimming of trees and shrubbery. The grantee shall have the authority to trim trees or other natural growth overhanging any of its cable system in the service area so as to prevent branches from coming into contact with the grantee's wires, cables or other equipment. The grantee shall reasonably compensate the LFA for any damages caused by such trimming or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the cable system undertaken by the grantee. Such replacement shall satisfy any and all obligations that the grantee may have to the LFA pursuant to the terms of this section. All trimming and pruning shall be at the expense of the grantee, and all trimming or pruning provided herein shall be done under the supervision and direction of the appropriate municipal committee. LFA shall be given 30 days' notice of any trimming by grantee pursuant to this section unless emergency circumstances warrant trimming to take place immediately.

G. 

Safety requirements. Construction, installation and maintenance of the cable system shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state and local regulations and the National Electric Safety Code. The cable system shall not unreasonably endanger or interfere with the safety of Persons or property in the service area.

A. 

In those areas of the service area where all the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are 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 cable system's quality. In those areas of the service area where transmission or distribution facilities of the respective utilities providing telephone communications and electric services are both aerial and underground, the grantee shall have the sole discretion to construct, operate and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this section shall require the 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. Notwithstanding anything to the contrary contained in this section, in the event that all of the communications and electrical services are placed underground after the effective date of this franchise, the grantee shall only be required to construct, operate and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities' facilities at the time such are placed underground. Any cost or expense associated with such relocation shall be the initial responsibility of the grantee.

B. 

New construction projects. In the cases of new, underground construction projects, the grantee shall be relieved of any obligation to extend the cable system into such development when and if the grantee has not been given adequate notice and access to open trenches. Where the grantee does extend the cable system into such new construction projects, installation from the utility easements to individual homes or other structures shall be at the cost of the home/building owner or developer, unless another satisfactory arrangement is available and acceptable to all parties of interest.

C. 

Local improvement district. If an ordinance is passed creating a local improvement district which involves the placing underground of certain utilities, including those of the grantee which are then located overhead, the grantee shall participate in such underground project and shall remove poles, cables and wires from the surface of the streets within such district and shall place them underground in conformity with the requirements of the LFA. The grantee may include its costs of relocating facilities associated with the underground project in said local improvement district if allowed under applicable law.

D. 

Required extensions of service. Grantee is hereby authorized to extend the cable system as necessary, as desirable or required pursuant to the terms hereof with the service area. Whenever the grantee shall receive a request for the service from at least 15 residences within 1,320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its cable system to such subscribers at no cost to said subscribers for the cable system extension, other than the usual connection fees for all subscribers; provided that such extension is technically feasible, and if it will not adversely affect the operation, financial condition or market development of the cable system, or as provided for under § 113-5 of this franchise.

No subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a subscriber's request to locate his cable drop underground, existence of more than 125 feet of distance from the distribution cable to connection of service to subscribers or a density of less than 15 residences per 1,320 cable-bearing strand feet of trunk or distribution cable, grantee may establish a special fee. Service may be made available on the basis of cost of material, labor and easements, as a special fee, in order that existing subscribers shall not be unfairly burdened. The grantee may require advance payment of this fee or may make other arrangements with individual subscribers.

The grantee shall, upon request, provide without monthly charge one outlet of basic cable service to those LFA business offices, fire station(s) and police station(s) that are passed by its cable system. The outlets of basic service shall not be used to distribute or sell services in or throughout such buildings, nor shall such outlets be located in areas open to the public. The LFA shall take reasonable precautions to prevent the use of the grantee's cable system in any manner that results in the in appropriate use thereof or any loss or damage to the cable system. Users of such outlets shall hold the grantee harmless from any and all liability or claims arising out of their use of such outlets, including, but not limited to, those arising from copyright liability. 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 the FCC standard installation distance of 125 feet or unless the appropriate governmental entity agrees to pay the incremental cost of excess drop line and other required equipment. If additional outlets of basic cable service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials.

A. 

In accordance with and at the time required by the provisions of the FCC Regulations Part 11, Subpart D, Section 11.51, and as such provisions may from time to time be amended, the grantee shall install, if it has not already done so, and maintain an Emergency Alert System (EAS) for use in transmitting Emergency Act Notifications (EAN) and Emergency Act Terminations (EAT) in local and state-wide situations as may be designated to be an emergency by the Local Primary (LP), the State Primary (SP) and/or the State Emergency Operations Center (SEOC), as those authorities are identified and defined with FCC Regulations, Section 11.18.

B. 

The LFA shall permit only appropriately trained and authorized persons to operate the EAS equipment and shall indemnify and hold harmless the grantee, its employees, officers and assigns from any claims arising from the use of the cable system or EAS equipment by the LFA, its employees, authorized representatives or designees, including, but not limited to, reasonable attorneys' fees. Additionally, the LFA shall indemnify, save and hold harmless the grantee against damage, loss or inappropriate use of the equipment and shall agree to use due care and to take reasonable precautions against such damage, loss or inappropriate use of EAS equipment or other cable system equipment which may be used during a declared emergency.

A. 

The LFA hereby imposes an annual financial obligation in the form of a franchise fee. Such fee shall be calculated at 3% of the Gross Cable Receipts (as defined in § 113-1). It is understood that all franchise fees may be itemized on the subscriber bills, and such fees are recognized as being "pass through" to the subscribers. Payment to the LFA shall be computed and prepaid in quarterly installments and shall arrive at the LFA office within 60 days after the close of each preceding quarter. For the purposes of the franchise fee reporting and reconciliation, the applicable accounting period shall be a calendar year. To accompany each fourth-quarter fee payment, the grantee shall report the payment records for the preceding year, and such report shall be submitted on the prescribed form, which is included herein as Exhibit B.

Editor's Note: Exhibit B is on file in the Borough offices.

B. 

The grantee shall follow all procedures required in seeking LFA permits, licenses and other permissions. In the event that there are fees or other costs associated with such permits, licenses or other permissions, the grantee may ask that Council approve an LFA waiver of same, may seek a written authorization and schedule for deduction of any such payment from future franchise fee payments or may recover such payments as permitted by applicable law or rules of the FCC or other governmental agency.

C. 

Limitation on franchise fee actions. The period of limitation for the recovery of any franchise fee payable hereunder shall be four years from the date on which payment by the grantee is due. Unless the LFA initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, within four years from and after such payment due date, such recovery shall be barred and the LFA shall be stopped from asserting any claims whatsoever against grantee relating to any such alleged deficiencies.

The grantee shall calculate the franchise fee in accordance with the provisions of the Video Programming Municipal Tax Authorization Act (PA Act 37 of 1995)

Editor's Note: See 72 P.S. § 6171 et seq.
at such time as any competitor identified as a video programmer under Act 37 announces the availability of any services subject to the provisions of Act 37 in any portion of the service area.

The LFA may regulate rates for the provision of basic cable, equipment and certain other charges as expressly permitted by the rules and regulations of the FCC and under applicable law.

A. 

The LFA and the grantee agree that any proceedings undertaken by the LFA that relate to the renewal of the grantee's franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provisions set forth by federal law.

B. 

In addition to the procedures set forth in said Section 626(a), the LFA agrees to notify the grantee of all of its assessments regarding the identify of future cable-related community needs and interests, as well as the past performance of grantee under the then-current franchise term. The LFA further agrees that such a preliminary assessment shall be provided to the grantee promptly so that the grantee has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the franchise prior to the expiration of its term. Notwithstanding anything to the contrary set forth in this section, the grantee and the LFA agree that at any time during the term of the then-current franchise, while affording the public appropriate notice and opportunity to comment, the LFA and the grantee may agree to undertake and formalize informal negotiations regarding the renewal of the then-current franchise, and the LFA may grant renewal thereof. The grantee and the LFA consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act.

A. 

If a renewal or extension of the grantee's franchise is denied or the franchise is lawfully terminated, and the LFA either lawfully acquires the ownership of the cable system or by its actions lawfully effects a transfer of ownership of the cable system to another party, any such acquisition or transfer shall be at the price determined pursuant to the provisions set forth in Section 627 of the Cable Act.

B. 

The grantee and the LFA agree that in the case of a final determination of a lawful revocation of the franchise, at the grantee's request, which shall be made in its sole discretion, the grantee shall be given reasonable opportunity to effectuate transfer of its cable system to a qualified third party. The LFA further agrees that during such period of time, it shall authorize the grantee to continue to operate pursuant to the terms of its prior franchise; however, in no event shall such authorization exceed a period of time greater than six months from the effective date of such revocation. If, at the end of that time, the grantee is unsuccessful in the procuring of a qualified transferee or assignee of its cable system which is reasonably acceptable to the LFA, the grantee and the LFA shall avail themselves of any rights they may have pursuant to the federal or state law; it being further agreed that the grantee's continued operation of its cable system during the six-month period shall not be deemed to be a waiver, nor an extinguishment, of any right of either the LFA or the grantee.

The grantee's right, title or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an entity controlling, controlled by or under common control with the grantee, without prior consent of the LFA, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by hypothecation or by assignment of any rights, title or interest of the grantee in the franchise or cable system in order to secure indebtness. Within 30 days of receiving the request for the transfer, the LFA shall, in accordance with FCC rules and regulations, notify the grantee in writing of the information it requires to determine the legal, financial and technical qualifications of the transferee. If the FLA has not taken action on the grantee's request for transfer within 120 days after receiving such request, consent by the LFA shall be deemed given. In a similar manner, and in the event that the LFA would wish to consider the transfer of this franchise or any change in administrative control over this franchise, the LFA shall give notice to the grantee. Any grantee request for a meeting or a public hearing on the proposed action shall be honored by the LFA, and such meeting or hearing shall be conducted within 30 days of grantee receipt of notice. The grantee shall then have 120 days from the original notice to seek amendments to this agreement prior to transfer or change in administrative control or reject any of the proposed actions.

The grantee agrees that the LF, upon reasonable notice to the grantee, may review such of its books and records at the grantee's business office, during normal business hours and on a nondisruptive basis, as is reasonably necessary to ensure compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, the grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The LFA agrees to treat any information disclosed by the grantee as confidential and only to disclose to its employees, representatives and agents thereof that have a need to know, or in order to enforce the provisions hereof. The grantee shall not be required to provide subscriber information in violation of Section 631 of the Cable Act.

The grantee shall maintain in full force and effect, at its own cost and expense, during the term of the franchise, commercial general liability insurance in the amount of $1,000,000 combined single limit for bodily injury and property damage. The grantee shall provide a certificate of insurance designating the LFA as an additional insured. Such insurance shall be noncancellable except upon 30 days' prior written notification to the LFA.

The grantee agrees to indemnify, save and hold harmless and defend the LFA, its officers, boards and employees from and against any liability 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 construction, operation or maintenance of its cable system, including, but not limited to, reasonable attorneys' fees and costs, provided that the LFA shall give the grantee written notice within 15 working days of receipt of claim or action pursuant to this section.

Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the franchise or continuing its existence. The franchising authority acknowledges that the legal, financial and technical qualifications of the grantee are sufficient to afford compliance with the terms of the franchise and enforcement thereof.

In the event that the LFA believe that the grantee has not complied with the terms of the franchise, it shall notify the grantee in writing of the exact nature of the alleged noncompliance. The grantee shall not be relieved of any of its obligations to comply promptly with any provision of the franchise by reason of any failure of the LFA to enforce prompt compliance.

The grantee shall have 30 days from receipt of the notice described in § 113-18 to:

A. 

Respond to the LFA, contesting the assertion of noncompliance; or

B. 

Cure such default; or

C. 

In the event that, by the nature of the default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the LFA of the steps being taken and the projected date on which they will be completed.

In the event that the grantee fails to respond to the notice described in § 113-18 pursuant to the procedures set forth in § 113-19, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to § 113-19C above, the LFA shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the LFA which follows the close of the 30 days or projected date noted above. In the event that there are not at least five consecutive business days between either the close of the thirty-day period, or projected completion date, or in the event of another conflict, the public hearing shall be held as either an intervening special meeting or at the second regularly schedule meeting associated with the thirty-day period or projected completion date. The LFA shall notify the grantee in writing of the time and place of such meeting and provide the grantee with an opportunity to be heard.

Subject to applicable federal and state law, in the event that the LFA, after such meeting, determines that the grantee is in default of any provision of the franchise, the LFA may:

A. 

Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;

B. 

Commence an action of law for monetary damages or seek other equitable relief;

C. 

In the case of a substantial default of a material provision of this franchise, declare the Franchise Agreement to be revoked in accordance with the following:

(1) 

The LFA shall give written notice to the grantee of its intent to revoke the franchise on the basis of a pattern of noncompliance by the grantee, including one or more instances of substantial noncompliance on a material provision of the franchise. The notice shall set forth the exact nature of the noncompliance. The grantee shall have 90 days from such notice to object in writing and to state the reasons for such objection. In the event that the LFA has not received a response satisfactory from the grantee, it may then seek termination of the franchise at a public meeting. The LFA shall cause to be served upon the grantee, at least 10 days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination.

(2) 

At the designated meeting, the LFA shall give the grantee an opportunity to state its position on the matter, after which it shall determine whether or not the franchise shall be revoked. The grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the LFA "de novo" and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within 60 days of the issuance of the determination of the LFA.

In any action by the LFA or the grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.

The LFA and the grantee recognize that a change in circumstances may lead to consideration of amendments to this franchise. Either party may present a proposed amendment to the other, and consideration of any proposed amendment shall occur within six months of presentations. This franchise and any enabling legislation may only be amended by mutual consent.

The grantee shall not be held in default under, or in noncompliance with, the provisions of this franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the grantee's ability to anticipate and control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the grantee's cable and/or equipment is attached.

In the event that the LFA enters into a franchise, permit, license, authorization or other agreement of any kind with any other person or entity other than the grantee to enter the LFA's public ways for the purpose of constructing or operating a cable system or providing Cable Service to any part of the service area, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be granted unfair competitive advantage over another and to provide all parties equal protection under the law.

A. 

Unless expressly otherwise agreed between parties, every notice or response required by this franchise to be served upon the LFA or the grantee shall be in writing and shall be deemed to have been duly given to the required party:

(1) 

When hand delivered;

(2) 

Five business days after having been posted in a properly sealed and correctly addressed envelope; or

(3) 

Sent by certified or registered mail, postage prepaid.

B. 

The notices or responses to the LFA shall be addressed as follows:

The Office of the Borough Secretary Borough of Conway 1208 Third Avenue Conway, PA 15027
C. 

The notices or responses to the grantee shall be addressed as follows:

TCI of Pennsylvania, Inc. Attention: General Manager 300 Corliss Street Pittsburgh, PA 15220-4815
D. 

The LFA and the grantee may designate such other address or addresses from time to time by giving notice to the other.

The captions to the sections contained herein are intended solely to facility the reading thereof. Such captions shall not affect the meaning or interpretation of the text therein.

The municipality reserves the right to adopt from time to time, in addition to the provisions herein contained, such ordinances as may be necessary in the exercise of police power. Such regulation shall be reasonable and not in derogation of the rights herein granted, nor in conflict with the state or other local or federal laws or regulations.

The following documents shall be incorporated herein:

A. 

Exhibit A: Receipts Subject to Franchise Fee.

B. 

Exhibit B: Annual Franchise Fee Reporting Form.

All ordinances and resolutions, and any parts of either thereof, which are inconsistent or in conflict herewith shall be and the same are hereby repealed to the extent of such inconsistency or conflict.

If any section, sentence, paragraph, term or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the franchise, or any renewal or renewals thereof.