[HISTORY: Adopted by the Borough Council of the Borough of Shippensburg 3-17-1987 by Ord. No. 550, approved 3-17-1987. Amendments noted where applicable.]
[Amended 3-5-1996 by Ord. No. 661, approved 3-5-1996; 6-15-1999 by Ord. No. 708, approved 6-15-1999]
The grant of authority is hereby assigned and transferred to Comcast Cablevision of Southeast Pennsylvania, Inc. The authority granted herein shall be extended from April 1, 2002, for a period of six months or September 1, 2002.
[Amended 4-16-2002 by Ord. No. 755, approved 4-16-2002]
The right to use and occupy the streets, alleys and sidewalks for the purposes herein set forth shall not be exclusive, and the borough reserves the right to grant a similar use of the streets, alleys and sidewalks to any person or corporation at any time during the period of the franchise.
The licensee shall at all times during the term of this franchise be subject to and comply with all lawful exercise of the police powers of the borough and with such reasonable regulations as the borough hereafter may, by resolution or ordinance, provide. The licensee shall, at all times during the term of this franchise, also be subject to and comply with all applicable federal and state laws, rules and regulations.
The licensee shall save the borough harmless from any and all loss sustained by the borough on account of any judgment, suit, execution or demand whatsoever arising out of the construction, operation or maintenance of its community antenna television system in the borough. Furthermore, the licensee shall, at all times, carry property damage and liability insurance, with a responsible insurance company authorized to do business in the Commonwealth of Pennsylvania, in the following minimum amounts:
The borough shall be named as an additional insured, and a certificate of insurance shall be filed with the borough within 60 days of the granting of the franchise.
The licensee shall have the authority to promulgate such rules and regulations, terms and conditions covering the conduct of its business as shall be reasonably necessary to enable the licensee to exercise its rights and perform its obligations under this franchise. Such rules and regulations shall not be in conflict with the provisions of this ordinance. A copy of the licensee's rules shall be kept available for public inspection at the licensee's office and shall also be filed with the borough.
All transmission and distribution structures, lines and equipment erected by the licensee within the borough shall be so located as to cause minimum interference with the proper use of streets, alleys and sidewalks and so as to cause minimum interference with the rights or reasonable convenience of property owners who adjoin on any such streets, alleys or sidewalks and shall not obstruct the reasonable travel on streets, alleys or sidewalks and shall not be erected or maintained so as to create a nuisance.
All transmission and distribution structures, lines and equipment erected by the licensee within the borough shall be installed so that the safety, functioning and appearance of the property and the convenience and safety of other persons shall not be adversely affected by the installation or construction of facilities necessary for the cable system pursuant to Section 621(a)(2) of the Cable Communications Policy Act of 1984.
The licensee shall not place structures, lines or equipment where the same would interfere with any gas, electric, telephone, water, sewer, traffic control signalization or streetlights or obstruct or hinder in any manner the various utilities serving the residents of the borough.
The cost of the installation, construction, operation or removal of such facilities shall be borne by the cable operator or subscriber, or a combination of both.
The owner of the property shall be justly compensated by the cable operator for any damages caused by the installation, construction, operation or removal of such facilities by the cable operator.
The licensee shall not erect any poles within the public rights-of-way without written permission from the borough.
In the event that the borough alters or vacates any public street or alley as provided for under the Borough Code, the licensee shall, with reasonable notice, relocate, remove or obtain easements for said licensee's transmission and distribution structures, lines, equipment or other facilities, at his own expense.
Editor's Note: See 53 P.S. § 45101 et seq.
Construction, installation and maintenance of the borough's cable communication system performed after the effective date of this ordinance shall be performed in an orderly and workmanlike manner. All cables and wires shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled, with due respect for engineering considerations.
The licensee shall, at all times, comply with the National Electric Safety Code, as prepared by the National Fire Protection Association and as adopted by the borough.
[Amended 3-5-1996 by Ord. No. 661, approved 3-5-1996]
The distribution facilities of the licensee shall at all times be maintained in a good and safe order and condition and shall be constructed and maintained according to the rules and regulations of the Federal Communications Commission. The licensee shall provide its customers with cable television signals which meet the technical standards established by the rules of the Federal Communications Commission, Part 76, Subpart K, and any other applicable federal and state laws, rules and regulations.
System upgrade. The licensee agrees that within 36 months after the effective date of this amendment, the licensee shall have begun a technical upgrade to the system which shall provide a minimum channel capacity of 75 standard video channels. The licensee shall, upon the completion of the system upgrade, initially program this system with sufficient bandwidth that, when used in conjunction with an appropriate terminal device at the subscriber's receiver, shall enable the reception of a minimum of 53 downstream video channels. The licensee shall complete the upgrade within 24 months after its commencement.
No person shall be required to subscribe to the service or services provided by the licensee.
The licensee shall provide a basic service, with the minimum number of programming services equal to that previously provided by Shippen Cable Television.
The licensee shall make service available, under its normal terms and conditions, to all residents of the Borough of Shippensburg receiving service as of the effective date of this ordinance. The licensee shall make service available to residents of the borough not serviced as of the effective date of this ordinance so long as the density per linear mile of occupied dwelling units in the unserviced area is equal to or greater than the average density per linear mile of the existing distribution system within the borough and so long as the borough grants permission to erect poles or distribution facilities upon certain streets and alleys.
The licensee shall assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides, pursuant to Section 621(3) of the Cable Communications Policy Act of 1984.
The licensee shall not be required to make a standard aerial drop of more than 150 feet of cable from its existing distribution lines.
The licensee shall continue to furnish, without charge, the same type of service to those municipal or school district buildings which are currently provided service by Shippen Cable Television on the effective date of this ordinance and shall provide, without charge, one outlet for basic service in additional municipal- and school-owned facilities within the borough if requested to do so by the borough or school district.
The licensee shall exercise its best efforts to minimize the number of service drops consistent with property owners' wishes and shall not charge for the removal of lines.
The licensee shall, at the option of the borough, pay to the borough, a sum to be determined by the borough of up to 5%, or the maximum allowed by law, of its annual gross receipts derived from operations within the Borough of Shippensburg. The franchise fee shall be paid on a quarterly basis within 60 days after the end of each calendar quarter. The borough shall notify the licensee at least 45 days prior to the end of the calendar year if such fee is not to be collected for the subsequent year, provided that in the first three months of the operation of the franchise, such a fee may be imposed upon 45 days' notice to the licensee, said fee to begin not earlier than August 1, 1987.
[Amended 5-17-1988 by Ord. No. 562, approved 5-17-1988]
The licensee shall furnish, within 60 days after the end of each calendar year, a statement of gross receipts and all calculations used to determine the fee, attested to by a senior officer of the licensee.
The licensee shall pay the necessary cost of publication of this ordinance.
The licensee may not transfer this franchise without the specific written consent of the borough. The provisions of this section shall not apply if the transfer involves the sale or transfer of stock to a wholly owned subsidiary or to an entity under the same ultimate ownership or control as the licensee.
The borough shall have the right to terminate the rights and privileges provided by this ordinance, given the following conditions:
The licensee has violated any term of the franchise ordinance.
The borough has provided the licensee with a written notification of the violation.
The licensee has been given the opportunity to address the Borough Council and discuss said violation with the Council.
The Borough Council has provided the licensee with a reasonable period of time for compliance, but in no event more than 180 days nor less than 60 days, after written notification to the licensee.
If the licensee fails to correct the violation within the specified period of time, the Borough Council can terminate the rights and privileges by ordinance.
In the event that there is any dispute as to whether or not there has been a violation or whether any alleged violation has been corrected, said question shall be submitted to arbitration as herein provided.
The borough and the licensee do hereby agree to submit to arbitration, as herein set out, their respective claims and controversies arising out of any dispute between them as to any of the terms and conditions and promises of this ordinance.
This section may be invoked at any time by the borough or the licensee, in writing, requesting arbitration as to any point or issue arising between the borough and the licensee concerning the terms and conditions and promises of this ordinance, which writing shall nominate an arbitrator within 20 days thereof. Said two arbitrators, so selected, shall select a third arbitrator within 15 days thereof. Should either party refuse to nominate an arbitrator within 30 days from date of request, or should two arbitrators selected by the parties refuse or fail to nominate a third arbitrator, the other party may apply to the Court of Common Pleas of Cumberland County, Pennsylvania, to select the necessary arbitrators to complete the panel.
Said arbitrators shall proceed to hear and determine the controversy, following the usual and customary procedures for arbitration, and the decision of such arbitrators shall be final. Costs of arbitration, including compensation of arbitrators and stenographic help employed, shall be paid by the party against whom the decision is rendered or apportioned between the parties in the event that the final decision shall not be totally in favor of one party.
If, for any reason of force majeure, either party is unable, in whole or in part, to carry out its obligations, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure," as used herein, shall have the following meaning: strikes; acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the Commonwealth of Pennsylvania or any of their departments, agencies or political subdivisions; riots; epidemics: landslides; lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; arrests; civil disturbances; explosions; partial or entire failure of utilities; or any other cause or event not reasonably the control of the disabled party.
If any provision of this ordinance or the application thereof to any person, firm or corporation or circumstance arising hereunder is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be in effect without the invalid provision or its application, and, to this end, the provisions of this ordinance are declared severable.
This franchise shall not be effective until the licensee furnishes the borough with a written acceptance of the franchise grant in contract form.
The written release by Edgar J. Rosenberry, Shippen Radio and TV and Shippen Cable TV Company, Inc., of the borough, with respect to all rights, interests and privileges under the motion passed July 10, 1962, by the Borough Council, is hereby accepted, and the motion is repealed, subject to the conditions in said release.