[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]
A.
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]
B.
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.
A.
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:
B.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
The licensee shall not erect any poles within the public
rights-of-way without written permission from the borough.
G.
In the event that the borough alters or vacates any public
street or alley as provided for under the Borough Code,[1] 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.
[1]
Editor's Note: See 53 P.S. § 45101 et seq.
H.
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.
I.
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]
A.
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.
B.
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.
A.
No person shall be required to subscribe to the service
or services provided by the licensee.
B.
The licensee shall provide a basic service, with the
minimum number of programming services equal to that previously provided by
Shippen Cable Television.
C.
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.
D.
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.
E.
The licensee shall not be required to make a standard
aerial drop of more than 150 feet of cable from its existing distribution
lines.
F.
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.
G.
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.
A.
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]
B.
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.
A.
The borough shall have the right to terminate the rights
and privileges provided by this ordinance, given the following conditions:
(1)
The licensee has violated any term of the franchise ordinance.
(2)
The borough has provided the licensee with a written
notification of the violation.
(3)
The licensee has been given the opportunity to address
the Borough Council and discuss said violation with the Council.
(4)
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.
(5)
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.
B.
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.
A.
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.
B.
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.
C.
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.
