[HISTORY: Adopted by the Borough Council of the Borough of Economy 3-25-1992 by Res. No. 261. This resolution also superseded former Ch. A190, Cable Television Franchise, adopted 9-9-1983 by Ord. No. 245A. Amendments noted where applicable.]
A. 
For the purpose of this agreement, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below:
AFFILIATE
An entity which owns or controls, is owned or controlled by or is under common ownership with the grantee.
BASIC CABLE
The tier of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.
CABLE ACT
The Cable Communications Policy Act of 1984, as amended.
CABLE SERVICE
The one-way transmission to subscribers of video programming or other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or any other lawful communication service.
CABLE SYSTEM
A facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment or other communications equipment that is designed to provide cable service and other service to subscribers.
FCC
The Federal Communications Commission or the successor 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 for the purpose of offering cable service or other service to subscribers.
FRANCHISE AUTHORITY or FRANCHISING AUTHORITY
The Borough of Economy or the lawful successor, transferee or assignee thereof.
GRANTEE
TCI of Pennsylvania, Inc., or the lawful successor, transferee or assignee thereof.
GROSS SUBSCRIBER REVENUE
The monthly cable service revenue actually received from subscribers who receive basic cable service through that portion of the cable system located within the Borough. Included also are monthly charges for all premium channels and all other required, recurring monthly charges. Excluded are any taxes on cable service which are imposed directly or indirectly on any Borough subscriber, by any governmental unit or agency and which are collected by the grantee on behalf of such governmental unit or agency.
PERSON
An individual, partnership, association, joint stock company, trust, corporation or governmental entity.
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 public utility easements, dedicated utility strips or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the franchise authority in the service area which shall entitle the franchise authority and the grantee to 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 franchise authority within the service area for the purpose of public travel or for utility or public service use dedicated for compatible uses and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the franchise authority and the grantee to use thereof for the purpose of installing or transmitting the grantee's cable service or other service 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 franchising authority, and shall include any additions thereto by annexation or other legal means.
SUBSCRIBER
A person or user of the cable system who lawfully receives cable services or other service therefrom with the grantee's express permission.
VIDEO PROGRAMMING
Programming provided by or generally considered comparable to programming provided by a television broadcast station.
B. 
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 words in the singular number include the plural number.
The Borough hereby grants to the grantee a nonexclusive franchise which authorizes the grantee to construct and operate a cable system and offer cable service and other services in, along, among, upon, across, above, over, under or in any manner connected with 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 poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments or other related property or equipment as may be necessary or appurtenant to the cable system.
The franchise granted pursuant to this agreement shall be for an initial term of 10 years from the effective date of the franchise as set forth in § A190-4.
The grantee shall accept the franchise granted pursuant hereto by signing this agreement and filing the same with the Borough Secretary or other appropriate official or agency of the franchising authority within 60 days after official action by the Borough. Subject to acceptance by the grantee, the effective date of this agreement shall be the date of final and official Borough action.
The right to use and occupy said public ways, as defined above, for the purpose herein set forth shall not be exclusive to the grantee. However, the franchise authority shall require a franchise agreement for any other person or entity, as defined above, engaging in the cable service business within any portion of the Borough. The grantee shall receive the benefits of any more favorable terms or conditions enjoyed by another person or entity and otherwise, this agreement and any enabling legislation shall only be amended through mutual consent. In cases of future conflict between the provisions of this agreement and any ordinance, resolution, rule or regulation of the Borough, this agreement shall be the superseding document.
All transmission and distribution 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 can own property that adjoins any of said 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 which existed immediately prior to such disturbance.
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 franchising authority 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 franchising authority, but the grantee shall in all cases have the right of abandonment of its property. 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, the franchising authority shall make application for the same on behalf of the grantee, and such funds shall also be made available to the grantee. Should said public fund reimbursement request to fully compensate the grantee be denied, and should the franchising authority and the grantee be unable to agree on an acceptable method and amount of reimbursement, then the grantee shall be released from any obligation to provide cable service to the affected street or area.
The grantee shall, on the request of any person holding a building moving permit issued by the franchising authority, temporarily raise or lower its wires to permit the moving of such building, provided that the expense of such temporary raising or lowering of wires is paid by said person, including, if required by the grantee, making such payment in advance, and the grantee is given not less than 10 business days' advance written notice to arrange for such temporary wire changes.
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 in contact with the grantee's wires, cables or other equipment. The grantee shall be permitted to charge persons who own or are responsible for such trees or natural growth for the cost of such trimming, provided that similar charges are assessed by and paid to the utilities or the franchising authority for tree trimming. The grantee shall reasonably compensate the franchising authority or property owner 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 the grantee may have to the franchise authority or property owner pursuant to the terms of this section.
Subject to any applicable state or federal regulations or tariffs, the franchising authority shall have the right to make additional use, for any public purpose, of any poles or conduits controlled or maintained exclusively by or for the grantee in any public way, provided that such use by the franchising authority does not interfere with a current or future use by the grantee, and the franchising authority holds the grantee harmless against any and from all claims, demands, costs or liabilities of every kind and nature whatsoever arising out of such use of said poles or conduits, including but not limited to reasonable attorneys' fees and costs, and, at the grantee's sole discretion, the franchising authority may be required either to pay a reasonable rental fee or otherwise reasonably compensate the grantee for the use of such poles, conduits or equipment; provided, however, that the grantee agrees that such compensation or charge shall not exceed those paid by it to public utilities pursuant to the applicable pole attachment agreement or other authorization relating to the service area.
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 safety code or technical requirements, including but not limited to the National Electrical Safety Code (National Bureau of Standards); the National Electrical Code (National Bureau of Fire Underwriters); and applicable FCC or other federal and state regulations. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the service area. In particular, the grantee shall comply with all state or federal laws or regulations which govern cable plant signal leakage or interference with communications media. Any antenna structure used in the cable system shall comply with all construction, marking and lighting of antenna structure requirements of the United States Department of Transportation (Federal Aviation Administration) and the FCC.
In those areas of the service area where all of 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 the grantee's cable and other equipment without technical degradation of the cable system's signal quality. In those areas of the service area where the transmission or distribution facilities of the respective public 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 and 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 transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this agreement, 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 that such are placed underground.
The cable system as presently constructed is hereby approved as to extent of the service area. The grantee is hereby authorized to extend the cable system as necessary, as desirable or as required pursuant to the terms hereof within the service area. Whenever the grantee shall receive a written request for service from at least 15 potential subscribers within 1,320 cable-bearing stand feet [one-fourth (1/4) cable mile] of its aerial trunk cable or from 25 potential subscribers in underground construction areas, it shall extend its cable system to such subscribers at no cost to said subscribers for 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. Written requests shall be numbered at a rate of one head of household per individual address.
No subscriber or potential subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as requests for underground cable where aerial installation is the standard, or where there is more than 150 feet of distance from distribution cable to connection of service to subscribers or a density of less than that stated in § A190-14, the grantee may establish a special fee. Existing subscribers who request replacement of aerial line with underground installation may also be subject to this 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 shall provide without charge one outlet of basic cable service to each of the franchise authority's office buildings, fire station, police station and public elementary and secondary school building that is passed by its cable system. The outlets of basic service shall not be used to distribute or sell cable services in or throughout such buildings, nor shall such outlets be located in common or public areas open to the public. 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. Not withstanding anything to the contrary set forth in this section, 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 150 cable feet unless it is feasible and if it will not adversely affect the operation, financial condition or market development of the cable system to do so or unless the appropriate governmental entity agrees to pay the incremental cost of such drop line in excess of 150 cable feet. In the event that additional outlet(s) of basic service are provided to such buildings, the building owner shall pay the usual installation and service fees associated therewith.
In the case of any emergency or disaster, the grantee shall, upon request of the franchising authority, make available its facilities for the franchising authority to provide emergency information and instructions during the emergency or disaster period. The franchising authority shall hold the grantee, and its agents, employees, officers and assigns hereunder, harmless from any claims arising out of the emergency use of its facilities by the franchising authority, including but not limited to reasonable attorneys' fees and costs.
All performance and technical standards governing construction, reconstruction, installation, operation, testing, maintenance and dismantling of the cable system provided herein shall be in accordance with all applicable FCC and other federal, state and local laws and regulations.
The grantee shall pay to the franchising authority a franchise fee equal to 5% of gross revenues, as defined by "gross subscriber revenue" in § A190-1A, received by the grantee from the operation of the cable system. Franchise fee payments due the franchising authority under this section shall be computed quarterly. The quarterly franchise fee payments shall be due and payable 60 days after the close of the preceding calendar quarter. For the purpose of franchise fee accounting, the applicable period shall be a calendar year, and, within 60 days of the close of each calendar year, a representative of the grantee shall prepare and deliver a brief report showing the basis for computation of franchise fees. In no event shall the franchise fee payments required to be paid by the grantee exceed 5% of gross revenues received by the grantee in any twelve-month period. The franchise fee payment shall be the sole compensation due, and no other fee, charge, tax or other consideration shall be paid by the grantee. Sales tax or other tax levied on a per-subscription basis and collected by the grantee shall be deducted from gross revenues in computing any sum due.
The franchising authority may not regulate the rates for the provision of cable service and other services, including but not limited to ancillary charges relating thereto, except as authorized pursuant to federal law, including but not limited to the Cable Act and FCC rules and regulations relating thereto. The grantee shall have the right to modify rates from time to time and to implement additional charges and rates.
A. 
The franchising authority and the grantee agree that any proceedings undertaken by the franchising authority 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 such existed as of the effective date of the Cable Act), unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provisions of federal or state law.
B. 
In addition to the procedures set forth in said Section 626(a), the franchising authority agrees to notify the grantee of its preliminary assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of the grantee under the then-current franchise term. The franchising authority further agrees that such a preliminary assessment shall be provided to the grantee prior to the time that the four-month period referred to in Subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary set forth in this section, the grantee and franchising authority agree that at any time during the term of the then-current franchise, while affording the public appropriate notice and opportunity to comment, the franchising authority and grantee may agree to undertake and finalize negotiations regarding renewal of the then-current franchise, and the franchising authority may grant a renewal thereof. The Grantee and the Franchising Authority consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act. A reproduction of Section 626 of the Cable Act as such existed as of the effective date of the Cable Act is attached hereto as Exhibit A and incorporated herein by this reference.[1]
[1]
Editor's Note: Said Exhibit A is currently on file in the office of the Borough Secretary.
A. 
Except to the extent expressly required by federal or state law, if a renewal or extension of the grantee's franchise is denied or if the franchise is lawfully terminated, and the franchising authority either lawfully acquires 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 a fair market value, determined on the basis of the cable system valued as an ongoing concern.
B. 
The grantee and franchising authority agree that in the case 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 a reasonable opportunity to effectuate a transfer of its cable system to a qualified third party. The franchising authority further agrees that during such a 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 procuring a qualified transferee or assignee of its cable system which is reasonably acceptable to the franchising authority, the grantee and franchising authority may avail themselves of any rights they may have pursuant to 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 rights of either the franchising authority or the grantee. Notwithstanding anything to the contrary set forth in this section, neither the franchise authority nor the grantee shall be required to violate federal or state law.
The grantee's right, title or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an affiliate, without the prior consent of the franchising authority, such consent not to be unreasonably withheld. In cases where consent of the franchising authority is requested, in this or other matters, the grantee shall be given notice of the decision of the franchising authority, in writing and by registered or certified mail, within 45 days of franchising authority receipt of such request. Absence of notice within the specified time shall mean that the request is automatically granted without official action by the franchising authority. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation or by assignment of any rights, title or interest of the grantee in the franchise or cable system in order to secure indebtedness.
The franchising authority may perform technical tests of the cable system during reasonable times and in a manner which does not unreasonably interfere with the normal business operations of the grantee or the cable system in order to determine whether or not the grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such tests may be undertaken only after giving the grantee reasonable notice thereof, not to be less than two business days, and providing a representative of the grantee an opportunity to be present during such tests. In the event that such testing demonstrates that the grantee has substantially failed to comply with a material requirement hereof, the reasonable costs of such tests shall be borne by the grantee. In the event that such testing demonstrates that the grantee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the franchising authority. Except in emergency circumstances, the franchising authority agrees that such testing shall be undertaken no more than two times a year in the aggregate and that the results thereof shall be made available to the grantee upon the grantee's request.
The grantee agrees that the franchising authority may review such of its books and records, during normal business hours and on a nondisruptive basis, as is reasonably necessary to monitor 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 franchising authority agrees to treat any information disclosed by the grantee to it as confidential and only to disclose it to employees, representatives and agents thereof that have a need to know or in order to enforce the provisions hereof. Notwithstanding anything to the contrary stated herein, the grantee shall not be required to violate the provisions of Section 631 of the Cable Act, Protection of Subscriber Privacy.
The grantee shall maintain in full force and effect, at its own cost and expense, during the term of the franchise, comprehensive general liability insurance in the amount of $1,000,000 combined single limit for bodily injury and property damage. The insurance carrier for the grantee shall be solvent and authorized to conduct business in the Commonwealth of Pennsylvania. Any insurance policy issued in connection with this franchise shall designate the franchising authority as an additional insured. The grantee shall provide the franchising authority with a certificate of insurance to show compliance with the provisions of this section. Such insurance shall be noncancelable except upon 30 days prior written notice to the franchising authority.
The grantee agrees to indemnify, save and hold harmless and defend the franchising authority, 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 attorney's fees and costs.
The 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 franchising authority believes that the grantee has not complied with the terms of the franchise, it shall notify the grantee, in writing, by certified or registered mail, of the exact nature of the alleged noncompliance.
The grantee shall have 30 days from receipt of the notice described in § A190-29 to respond to the franchising authority contesting the assertion of noncompliance or to cure such default or, in the event that by the nature of default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
In the event that the grantee fails to respond to the notice described in § A190-29 pursuant to the procedures set forth in § A190-30 or in the event that the alleged default is not remedied within 60 days after the grantee is notified of the alleged default pursuant to § A190-29, the franchising authority shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the franchising authority which is scheduled at a time which is no less than five business days therefrom. The franchising authority shall notify the grantee of the time and place of such hearing and provide the grantee with an opportunity to be heard.
A. 
Subject to applicable federal and state law, in the event that the franchising authority, after such hearing, determines that the grantee is in default of any provision of the franchise, the franchising authority may:
(1) 
Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;
(2) 
Commence an action at law for monetary damages or seek other equitable relief; or
(3) 
In the case of a substantial default of a material provision of the franchise, declare the franchise agreement to be revoked.
B. 
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 franchising authority to enforce prompt compliance.
The grantee shall not be held in default or noncompliance with the provisions of the franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages or other events reasonably beyond its ability to control.
The following documents shall be incorporated herein:[1]
A. 
Exhibit A, Section 626, Cable Act of 1984.
B. 
Exhibit B, Special Cable System Extension.
C. 
Exhibit D, Construction Map.
D. 
Exhibit D, Street Names.
[1]
Editor's Note: Said documents, consisting of Exhibits A through D, are currently on file in the office of the Borough Secretary.
If the FCC or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction by the franchising authority, the jurisdiction of the franchising authority shall cease and no longer exist.
In any action by the grantee and the franchising authority or representative thereof 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.
Unless expressly otherwise agreed between the parties, every notice or response to be served upon the franchising authority or grantee shall be in writing and shall be deemed to have been duly given to the required party five business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a post office or branch thereof regularly maintained by the United States Postal Service.
A. 
The notices or responses to the franchising authority shall be addressed as follows:
The Office of the Borough Secretary
Borough of Economy
2856 Conway-Wallrose Road
Baden, PA 15005
The Borough may copy the Solicitor.
B. 
The notices or responses to the grantee shall be addressed as follows:
TCI of Pennsylvania, Inc.
1718 Mt. Nebo Road
Sewickley, PA 15143-8563
With copies to:
TCI of Pennsylvania, Inc.
ATTENTION: Government Relations
101 Ewing Road
Carnegie, PA 15106
TCI of Pennsylvania, Inc.
ATTENTION: Legal Department
Denver, CO 80217
P.O. Box 5630
The grantee shall at all times during the life of this agreement be subject to all lawful exercise of the police power by the franchise authority. The franchise authority 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 laws of the state or other local or federal laws or regulations.
All ordinances and resolutions, and any parts of either thereof, which are inconsistent herewith, shall be and the same are hereby repealed.
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.