[HISTORY: Adopted by the Borough Council of the Borough of
Dallastown 11-10-2003 by Ord. No.
506[1]. Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former
Ch. A226, Cable Television franchise, adopted 8-12-1988 by Ord. No.
392, as amended 4-13-1998 by Ord. No. 432.
This ordinance shall be known and may be cited as the "Cable
Television franchise Ordinance."
For the purpose of this ordinance, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
shall include the future, words in the plural number shall include
the singular, and words in the singular number shall include the plural.
"May" will be interpreted as permissive, and "shall" will be interpreted
as mandatory.
Tier, pay channels or pay-per view events offered by the
company to subscribers for extra charges above the charge for basic
services.
Such yearly revenues received by company derived from the
operation of the cable system in the Borough, and annual gross revenues
shall include subscriber revenues from providing basic and additional
service, advertising revenues, home shopping revenues and any other
revenues derived from cable services (including revenues from installations,
late fees and equipment rent) received by the company from the operation
of the cable system.
The programming service provided by the company which includes
any over-the-air television signals which the company may carry and
is providing to all subscribers for payment of the applicable monthly
charge.
Dallastown Borough, a Borough located in York County, Pennsylvania.
The Cable Communications Policy Act of 1984 as amended by
the Cable Television Consumer Protection and Competition Act of 1992,
and as further amended by the Telecommunications Competition and Deregulation
Act of 1996.
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 other services, including Internet access, and voice and data
transmissions and which is provided to multiple subscribers within
a community, excluding however, those facilities excluded from such
definition of cable system in the Cable Act.
York Cable Television, Inc., a corporation, and grantee of
rights under this franchise, or its assignee or successor.
The Borough Council of the Borough of Dallastown.
The nonexclusive right, privilege and authority granted by
this ordinance to construct, maintain and operate a cable television
system in Borough, and shall permit, in addition to the privilege
to operate within Borough, the company to construct, maintain and
operate a cable television system with whatever wires or components
are necessary over, under or within all the Borough rights-of-way
and the streets situate therein located in the Borough.
The monies required to be paid to the Borough by the company
for the right to operate in the Borough, which are allowable by any
federal statute or regulation or state statute or regulation.
The Commonwealth of Pennsylvania.
The surface of as well as the space above and below all streets,
roadways, highways, freeways, avenues, lanes, alleys, courts, places,
squares, curbs, sidewalks, easements, rights-of-way or other public
ways in the Borough which have been or may hereafter be dedicated
and opened to public use or such other public property so designated
by law which shall, within their proper use and meaning, entitle Borough
and company to access thereon for the purpose of installing or transmitting
cable transmissions over poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, broadcasters,
receivers, attachments and any other property as may be necessary
and pertinent to operation of the business within the Borough.
Any person, firm, company, corporation or association paying
for basic service from the company.
A.
Effective November 1, 2003, company is hereby granted by the Borough
the right, privilege and franchise to construct, direct, operate,
modify and maintain for a period of five years a cable television
system for the sale and distribution of audio, video, digital and
other forms of electronic signals within, upon, along, across, over
and under the Borough streets and anywhere where such conduct may
be done lawfully within the boundaries of Borough.
B.
The company shall provide service in accordance with the following
guidelines:
(1)
In areas where aerial construction is permitted, the company shall
construct all sections which are contiguous to the existing system
and which shall have at least 30 homes per mile, but densely populated
areas shall be addressed so that population centers are served. In
areas where underground construction is required, the company shall
construct all sections which are contiguous to the existing system
and have at least 40 homes per mile. In the event that a given extension
would be less than one mile, the company shall construct the extension
if the number of homes passed in the proposed extension is in the
same proportion in relation to the length of said extension as the
standard set forth above for a one-mile extension (and for the same
type of construction).
(2)
In all areas where the company has constructed its cable television
system, the company shall provide service at the normal installation
costs (being those costs as normally published and charged) to a potential
subscriber whose home can be reached by an aerial drop line of 150
feet or less. "Aerial drop line" shall mean a line that runs above
ground from the cable feeder lines on the poles to the individual
subscriber's residence.
(3)
Notwithstanding anything to the contrary, the company shall have the right to deny service if the above-mentioned conditions are not met unless the subscriber or subscribers in question agree to reimburse the company for any extraordinary costs. In the case of Subsection B(1), above, "extraordinary costs" shall be costs in excess of the amount required to build one cable subscriber connection assuming aerial construction density of 30 homes per mile and the then current construction costs and penetration levels. In the case of Subsection B(2), "extraordinary costs" shall be costs in excess of the amount required to provide one aerial cable drop of 150 feet at the then current cost.
A.
The poles and posts used for the company's cable television
system lines shall be those erected by the company or by such other
persons, firms or corporations maintaining poles or posts within the
Borough limits, providing mutually satisfactory rental agreements
can be entered into with such persons, firms or corporations.
B.
The distribution facilities of company shall be at all times maintained
in good and safe way and condition and shall be constructed and maintained
so as not to interfere with television reception by inhabitants of
the Borough not using company's services.
C.
In the maintenance and operation of its cable television transmission
and distribution system in the Borough and in the course of construction
or addition to its facilities, the company shall proceed so as to
cause the least possible inconvenience to the general public, and
any opening or obstruction in the streets or other public places made
by the company in the course of its operations shall be guarded and
protected at all times by the placement of adequate barriers, fencings
or boardings, the bounds of which during the periods of dusk and darkness
shall be designated by warning lights of approved types.
D.
Whenever the company shall take up or disturb any pavement, sidewalk
or other improvement of any street, avenue, alley, highway or other
public place, the same shall be replaced and the surface restored
in as good condition as before entry as soon as practicable without
unnecessary delay.
E.
The location of any poles, anchors, wires, cables, conduits, vaults,
laterals and other fixtures, or the erection, laying or removal of
same, shall not interfere unreasonably with ordinary travel and/or
the use of the streets, alleys, bridges, public ways or electrical
installations of the Borough.
A.
Insurance. The company shall carry insurance in such form as shall
protect the Borough and company from and against any and all claims
for injury or damages to persons or property, both real and personal,
caused by the construction, erection, operation or maintenance of
any structure, equipment, appliance or products authorized or used
pursuant to authority or any activity of company within this Borough
arising from or growing out of their operation pursuant to the authority
granted in this franchise. The amount of such insurance against liability
due to damage to property shall be not less than $500,000 as to any
one person and $1,000,000 as to any one accident.
B.
Indemnification of the Borough. The company shall indemnify and hold
the Borough harmless at all times during the term of this franchise
and thereafter from and against any and all claims, demands, actions,
disputes or suits for injury, losses and damages of any kind whatsoever
arising from or caused by the construction, erection, operation and
maintenance of any structure, facility, equipment, appliance, system
or products authorized or used pursuant to the authority of this franchise
or the cable system or the existence of this franchise. Further, the
company, upon receipt of due notice in writing from the Borough within
five days of receipt of a claim or legal complaint, shall defend,
at its own expense, any action or proceeding against the Borough in
which it is claimed that personal injury or property damage arose
from any activity within the Borough for which the company agreed
to indemnify the Borough.
A.
Relocation. The company shall, upon reasonable notice without expense
to the Borough, temporarily relocate its facilities to accommodate
such public works or improvements as the Borough shall in its judgment
designate. The company shall, at the expense of any person other than
the Borough requesting said adjustment, temporarily raise, lower or
remove its wires to permit the improvement of property. In such event,
the company shall be given not less than 14 days' advance written
notice to arrange for the temporary wire changes.
B.
Overhead and underground construction. The company shall be permitted to place its cables, wires or other equipment overhead when local or state law permits overhead construction or when other like facilities are overhead. The company shall place its cables, wires or other equipment underground where local or state law requires underground placement and where all other like facilities are underground. Overhead and underground construction shall be governed by § A226-3 of this franchise ordinance.
C.
Clear accessways. The company may trim trees or other vegetation
within the right-of-way of the Borough to prevent their branches or
leaves from touching or otherwise interfering with its wires, cables
or other structures. The company shall obtain permission of the owner
of any private land, tree or other vegetation before it trims or prunes
the same, unless otherwise provided by the right-of-way agreement.
The company shall have the right to prescribe service rules
and regulations for the conduct of its business not inconsistent with
the provisions of this ordinance or any ordinances of the Borough.
A.
As consideration of the franchise granted herein, the company shall
pay to the Borough an annual fee equal to 5% of the annual gross revenues
attributable to cable services received from the operation of the
cable television system in the Borough by the company until the current
franchise term expires.
B.
Allocation of revenues. Borough's annual franchise fee shall be determined by adding the sums obtained in Subsections B(1) and (2) below:
(1)
Five percent of the annual gross revenue received by company from
subscribers for cable services derived from the operation of the cable
television system with the Borough.
(2)
Five percent of nonsubscriber revenues attributable to the Borough where revenues received by the company are not directly related to the number of subscribers using a service of the cable system with the Borough. (I.e., Commissions from advertising, home shopping channels or similar commission base programs). For purposes of this Subsection B(2), nonsubscriber revenues attributable to the Borough shall be determined by (a) dividing the number of Borough subscribers by the total of Borough plus non-Borough subscribers and (b) multiplying the quotient obtained in (a) by the total revenues received by the company which were not directly related to the number of subscribers using a service of the cable system in the Borough.
C.
Payment of the aforesaid franchise fee shall be made on a quarterly
basis within 30 days after the end of March, June, September and December
of each year of service. Failure to pay after 10 days' notice
of default shall result in the addition of a 10% penalty charge.
D.
Company shall provide the Borough, within 90 days after the close
of each annual period, a statement of a company officer certifying
the correctness and accuracy of the franchise fee payments made during
the year. In addition, company, at Borough's expense, shall permit
Borough to have a certified public accountant conduct an audit of
the company records and of the accounting procedures followed each
year to assure that, there is proper payment of the correct sums to
the Borough.
A.
Company shall provide within the Borough a cable television system,
which will be capable of carrying video and audio programming, data
services, Internet access and other forms of electronic or electric
signals. The programming on said channels may include television programming
available off the air and programming imported from distant markets
and received from cable satellite networks. Company shall have the
right to determine the programming and the time, place and manner
in which such programming will be provided to subscribers.
B.
The company shall maintain its service in accordance with accepted
standards of the industry so as to provide its subscribers with a
high level of quality and reliability.
C.
Whenever it shall be necessary to shut off or interrupt service for
the purpose of making repairs, adjustments or installations, the company
shall do so at such time as it will cause the least amount of inconvenience
to its subscribers, and unless such interruption is unforeseen and
immediately necessary, it shall give reasonable notice thereof to
its subscribers.
D.
The company shall maintain a business office within the York service
area, which shall be open during usual business hours.
A.
No transfer of control of a franchise shall take place whether by
forced or voluntary sale, lease, mortgage, assignment, encumbrance,
transfer of stock or any other form of disposition without prior approval
of the Borough, which shall not be unreasonably withheld. Nothing
contained herein shall be deemed to prohibit the assignment of the
franchise or mortgage of the company's property for financing
purposes subject to the rights of the Borough under this ordinance.
B.
The company may, with notice to the Borough, assign this franchise
to a subsidiary, affiliate or successor corporation of the company.
A.
Rate change and rate schedule.
(1)
Company shall provide information as to its initial monthly rates,
installation charges and all other charges, including but not limited
to equipment fees, late fees, and other administrative charges, if
any.
(2)
Company shall give subscribers at least 30 days' notice of its
intention to change monthly rates, equipment charges and installation
charges by mailing notices thereof to each of the current subscribers
to whom such charges will apply. Company shall give the Borough Manager
or his/her designee 30 days' advance notice of any rate change.
Company shall have the unrestricted right and availability to
utilize the cable television system for telecommunications purposes
other than cable television service, including hut not limited to
telephones, Internet access, point-to-point data and voice and message
transmission so long as said uses do not unduly interfere with the
cable television service being provided to subscribers.
Upon written request by the Borough, the company shall provide
a standard cable television service hookup of basic service via drop
line from trunk or feeder line cable to each municipal building, firehouse
and public school located within the Borough at no charge where company's
trunk lines currently pass or in the future pass said municipal building,
firehouse and public schools.
The cable television system within the Borough shall at all
times be constructed and operated in conformance with the technical
standards, rules and regulations governing cable television service
promulgated by the Federal Communications Commission.
A.
The Borough may terminate this franchise at any time prior to its
expiration date upon any material breach of any material term or condition
of this ordinance. The Borough shall notify the company in writing
of its intent to terminate and the reason for its revocation. The
company shall be afforded 60 days during which to adequately explain
what has caused the alleged material breach or other grounds for termination.
If it is determined that such breach was inadvertent, company shall
be afforded 60 days during which to cure the alleged breach or to
take affirmative action to commence or cure said breach. If the company
fails to cure or take affirmative action toward curing the breach
within such sixty-day period or in the event it appears that such
breach was not inadvertent or the reason Is other than for an immaterial
breach, then the Borough shall schedule a public hearing on its intent
to revoke the franchise. Company shall be afforded the due process
rights of notice, representation and the right to be heard at such
public hearing. After such public hearing, the Borough shall have
the right to revoke the franchise for just cause if said cause is
established or to impose a lesser penalty if so desired.
B.
In the event that revocation is imposed upon the company, company
shall have the right to sell, transfer and convey the cable television
system and its business operation within the Borough to a qualified
purchaser at fair market value so long as the same is diligently pursued,
company shall be obligated to continue its operation of the cable
television system and operation within the Borough until such sale.
The company shall not be liable or responsible for any delay
or failure of performance of its franchise if prevented from doing
so by the resulting acts of God, flood, storms, fires, explosions,
strikes, lockouts, riots, wars, whether or not declared, insurrections,
epidemics or any law, rule or acts of any court or instrumentality,
whether federal, state or municipal government, or any causes beyond
its control, provided that the same is not willfully done or brought
about for the purpose of excusing failure or omissions to perform
under the franchise and providing that, using reasonable care, the
same could not have been avoided by the company. In the event company
is rendered unable to perform in whole or in part, the company shall
begin to perform its franchise as soon as is practical after such
conditions cease to exist.
On and as of October 8, 2003, all agreements or parts of agreements
conflicting with the provisions of this ordinance shall be and the
same are hereby repealed.
If any section, sentence, clause or phrase of this ordinance
is held unconstitutional or otherwise invalid or preempted by state
or federal statutes or regulations, said section, sentence, clause
or phrase shall be null and void. The remaining portion of the ordinance
shall remain valid and binding upon the Borough and the company.
This ordinance shall constitute a contract between the Borough
and the company upon execution of this ordinance and the company's
written acceptance of the terms of the ordinance.
Company and Borough, intending to be legally bound hereby, do,
by the signature of their duly authorized officers, hereby accept
and agree to abide by the terms of this ordinance as a contracted
obligation.
