[HISTORY: Adopted by the Borough Council of the Borough of
Riverside 5-4-2015 by Ord. No.
2015-3.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former
Ch. A300, Cable Television Franchise Agreement, adopted 4-4-1994 by
Ord. No. 494.
This ordinance shall be known and may be cited as the "Cable
Television Franchise Ordinance" or "ordinance."
For the purposes 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
include the future, words in the plural number include the singular
number, words in the singular number include the plural number, and
words in the masculine gender shall include the feminine gender. The
word "shall" is always mandatory and not merely directory.
That tier of cable television service to which all users
must subscribe in order to obtain the retransmission of local broadcast
television signals and for which a charge is made. This tier is currently
known as "local advantage/classic cable."
The business of furnishing video and/or audio programming
or other information to subscribing customers by means of a cable
television system.
Any facility or group of facilities which, in whole or in
part, receives, modifies or originates television, FM radio or other
electrical or fiber optic signals for the purpose of transmitting
or distributing such signals by wire, cable or other means to subscribing
members of the public or to selected customers, as herein contemplated.
This definition shall include those systems that do not occupy or
cross over or under the public ways and places of the municipality.
Service Electric Cablevision, Inc., its successors and assigns.
The Borough of Riverside, Northumberland County, Pennsylvania,
acting through its duly constituted governing body.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
From and after the enactment of this ordinance, no cable television
system shall be constructed, installed or operated in the municipality
unless such construction, installation and operation shall first have
been authorized by a duly enacted ordinance of the municipality.
Having determined that the continued availability of cable television
service affords significant social, educational and entertainment
benefits to the public in the municipality, and the company has provided
a high quality of such service, has been responsive to the needs and
desires of residents of the municipality, and such continued service
can best be assured by granting a franchise to the company, and the
company has the legal, character, financial, technical and other qualifications
to continue to construct, erect, own, operate and maintain the cable
television service serving this municipality: the municipality hereby
grants unto the company the nonexclusive right and privilege to construct,
erect, operate and maintain a cable television system in, under, over,
along, across or upon the public streets, highways, sidewalks, rights-of-way
and places within the boundaries of the municipality, to the extent
permitted by law. Municipality also grants the company permission
to attach or otherwise affix or install its cables and other equipment
to and in the facilities of any public utility even though the same
may occupy or cross over or under the public ways and places of the
municipality; provided, however, that the municipality shall not grant
a franchise to any other person, firm or entity to operate a system
or provide service within the municipality unless such franchise imposes
at least the same terms, conditions and restrictions upon such person,
firm or entity as herein set forth.
This grant shall be for a period of 10 years from June 1, 2015,
to May 31, 2025, and maybe renewed once thereafter for a period of
five years at the option of the company, which renewal shall be automatic
unless the company notifies the municipality in writing of its intent
not to renew at least 180 days prior to the expiration of the original
ten-year term.
This grant is made upon the express condition that the company,
within 30 days after written notice is given to the company that this
ordinance has taken effect and becomes operative, shall file with
the Secretary or other duly authorized official of the municipality
a written acceptance of the same. When this ordinance shall have been
accepted by the company, such ordinance and acceptance shall constitute
a contract between the municipality and the company for all the uses,
services and purposes set forth in this ordinance. Except as may be
otherwise provided by state or federal law, order or regulation, the
rights and obligations of municipality and company shall be those
specified herein and shall not be enlarged, diminished or altered
by unilateral action of the municipality during the term of the franchise
or renewal thereof. The company, by its acceptance of the provisions
of this ordinance, binds itself to establish, operate and maintain
the local cable television system in order to provide the necessary
cable television service as contemplated in this ordinance.
The company shall serve all residents of the municipality except
to the extent that low household density, adverse terrain or other
factors render providing service impracticable or technically or economically
unfeasible. The company shall not be required to install, or to extend
the cable television system, to areas of the municipality where potential
revenues from subscribers to be served therein would produce a return
insufficient to economically justify such installation or extension.
Without limiting the generality of the foregoing, if otherwise practicable
and technically feasible:
A.
Service shall be provided at normal installation and monthly service
rates to an individual customer whose point of connection is located
within 150 feet of in-place distribution cable.
B.
The company, at its cost, shall make an extension of its cable system
where the number of existing households per linear mile of cable to
be passed by the extension equals or exceeds the average number of
households passed per linear mile of existing cable plant within the
municipality.
C.
In no event shall the company be required to make an extension where
the number of existing households to be passed per mile is less than
30. The company shall not be required to install or extend its system
in areas where it cannot:
Upon written request by the municipality or, with regard to
public school buildings, by the school districts within the municipality,
the company shall provide without charge one standard installation
and one outlet of basic cable television service to one administrative
building owned and occupied by the municipality and to those K-12
public school buildings as requested by the relevant school district
that are passed by its company's cable television system. The
municipality, the school districts, or their designees shall consult
with the appropriate individuals to determine a suitable location
for each installation and outlet prior to requesting it. The foregoing
notwithstanding, the basic cable television service provided shall
not be distributed beyond the originally installed outlet without
authorization from the company, shall not be used to distribute or
sell services in or throughout such buildings or for other commercial
purposes, and such outlets shall not be located in areas open to the
public. The municipality and the school districts shall take reasonable
precautions to prevent any use of the company's system in any
manner that results in the inappropriate use thereof or any loss or
damage to the system. The municipality shall hold the grantee harmless
from any and all liability or claims arising out of the provision
and use of basic cable television service required by this section,
including but not limited to those arising from copyright liability.
The company shall not be required to provide an installation or outlet
to any building under this section where the drop line from the feeder
cable to the building exceeds 300 cable feet, unless the appropriate
governmental entity agrees to pay the incremental cost of such drop
line in excess of 300 cable feet. Nothing in this section shall require
the company to provide an additional installation or outlet to any
municipality or public school building that already receives free
basic cable television service. If additional outlets of basic cable
television service are provided to such buildings, the municipality
or school district shall pay the usual installation and service fees
associated therewith, including, but not limited to, labor and materials.
The performance by the company hereunder is subject to limitations,
restrictions, or requirements now existing or which may henceforth
be imposed by law, rule, or order of the Federal Communications Commission
or other government, board, commission or authority. The company shall
not be deemed in default of any of the requirements of this ordinance
to the extent it acts in compliance with, or refrains from doing anything
prohibited by, such law, rule or order.
A.
All transmission and distribution structures, lines, and equipment
erected by the company within the municipality shall be so located
as to cause minimum feasible interference with the proper use of streets,
alleys and other public ways, roads and places, and to cause minimum
feasible interference with the rights or reasonable convenience of
property owners who adjoin any of the said streets, alleys or other
public ways, roads and places. The company shall obtain any required
permits prior to construction.
B.
In case of any disturbance of pavement, sidewalk, driveway or other
surfacing by the company, the company shall, at its expense and in
a manner approved by the municipality, replace and restore the same
in as good condition as before said work was commenced.
A.
The company shall render efficient service, make repairs promptly,
and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum use of the system.
Upon receipt of a complaint from a subscriber(s) regarding the quality
of service, equipment malfunctions, and similar matters, the company
shall promptly investigate such complaints.
B.
Where possible, the company shall commence an investigation of such
complaints within 24 hours of their receipt. Resolution of such service
complaint(s) shall be made as promptly as possible. The company shall
maintain toll-free telephone access for the receipt of service problems,
requests for repairs or customer inquiries.
C.
The company shall keep a maintenance service log for a period of
one year that will indicate the nature of each service complaint,
the date it was received, and the disposition of said complaint. Upon
request, this log shall be made available for inspection by the municipality,
during normal business hours.
D.
As subscribers are connected or reconnected, the company shall, by
appropriate means such as a card or brochure, furnish information
to them concerning the procedures for contracting the company, including
its name, address and local telephone number.
E.
The company's construction and maintenance of its transmission
and distribution system shall be in accordance with the provisions
of the National Electrical Safety Code prepared by the National Bureau
of Standards, the National Electrical Code of the National Board of
Fire Underwriters and any applicable state and federal laws or regulations
now in effect or later enacted regulating or affecting the company's
installation or operation.
The company shall save the municipality harmless from all loss
sustained on account of any suit, judgment, execution, claim or demand
whatsoever, resulting solely from the operation of the company in
the construction, operation or maintenance of its system in the municipality.
The municipality shall notify the company within 10 days after the
presentation of any claim or demand, either by suit or otherwise,
made against the municipality on account of any damages or losses
as aforesaid resulting from the operations of the company. Thirty
days from the enactment date of this ordinance, the company shall
furnish satisfactory evidence in writing that it has in force public
liability insurance of not less than a $1,000,000 combined single
limit, duly issued by an insurance company or insurance companies
authorized to do business in this commonwealth.
A.
No landlord shall demand payment from the company for permitting
the company to provide cable television service on or within said
landlord's property or premises; provided, however, that such
landlord may be entitled to reasonable reimbursement for any direct
expenses incurred by him in connection with the installation of cable
television service, and to just compensation for any permanent occupation
of his property resulting from the installation of the company's
facilities therein.
B.
No landlord shall interfere with the installation of cable television
facilities upon his property or premises nor shall such landlord discriminate
in rental charges, or otherwise, between tenants who receive cable
service and those who do not. No landlord shall demand or accept payment
from any tenant, in any form, for permitting cable television service
on or within his property or premises.
C.
As used in this section, the term "landlord" means any individual/entity
owning, controlling, leasing, and operating, or managing, leased residential
premises.
A.
During the term hereof (and during the renewal term if the company exercises its option to renew set forth in § A300-5 above), as compensation for the rights conferred upon it by this ordinance, including the privilege of engaging in the business of operating a cable television system in the municipality, the company shall pay annually to the municipality a fee equal to 3% of gross revenues collected by the company from cable television service. "Gross revenue" shall mean cash, credits, property, or consideration of any kind, as determined in accordance with generally accepted accounting principles that the franchisee receives from subscribers for the franchisee's provision of cable service in the Borough.
(1)
Gross revenue shall include only:
(a)
Fees charged for basic cable television service.
(b)
Fees charged to subscribers for any video service tier other
than basic cable television service.
(c)
Fees charged for premium channel(s), e.g., HBO, Cinemax, or
Showtime.
(d)
Fees charged to subscribers for any optional, per-channel, or
per-program services, e.g., video-on-demand.
(e)
Fees for high definition services.
(2)
For purposes of clarification and without limitation, gross
revenue shall not include:
(a)
Any revenues classified, in whole or in part, as non-cable services
revenue under federal or state law including, without limitation,
revenue received from telecommunications services; information services,
including without limitation internet access services; and any other
revenues attributed to non-cable services in accordance with applicable
federal and state laws or regulations.
(b)
The franchise fee and any tax, fee, or assessment of any kind
imposed by a franchising authority or other governmental entity on
a cable operator or cable subscriber, or both, solely because of their
status as such.
(c)
Broadcast retransmission fees.
B.
Payment of such annual fees shall be made on or before January 31
of each year. Such fee shall be reduced by the amount of any tax,
assessment, fee or other charge imposed, levied, made or collected
by the municipality upon or from the company for the privilege of
engaging in business in the municipality.
A.
The municipality shall have the right to inspect, at its sole cost
and expense and at reasonable times within six months after the company's
submission of a franchise fee payment, the records of the company
relating to gross revenues and franchise fee payments to the extent
necessary to verify the payments to which it is entitled; provided,
however, that the municipality shall provide the company with at least
30 days' prior written notice of the municipality's intent
to commence an audit. All records reasonably necessary for any such
audit shall be made available by the franchisee to the municipality.
B.
Any audit must be completed within 180 days after it is commenced
and must be certified as accurate by an independent public accountant,
who shall deliver a written audit report to the municipality and the
company within 30 days after completion of the audit. The company
may dispute the audit report by giving written notice to the municipality
within 60 days after the company's receipt of the audit report,
and the municipality and company shall cooperate to resolve the dispute
within 30 days after delivery of the company's notice of the
dispute. If the dispute is not resolved within such thirty-day period.
The company or municipality may pursue their remedies under the franchise
or applicable law.
C.
Any auditor employed by the municipality shall be a professional
firm with recognized expertise in auditing franchise fees and shall
not be permitted to be compensated on a success-based formula, e.g.,
payment based on an underpayment of fees, if any.
D.
Anything else in this franchise notwithstanding, the municipality
shall not be entitled to audit the franchisee until the municipality
requires that all cable operators providing cable service in the municipality
comply with the material provisions of this article.
The company shall assume the cost of publication of this ordinance
as such publication is required by law and shall pay the same upon
demand by the municipality.
If any section, subsection, sentence, clause, phrase or portion
of this ordinance is for any reason held illegal, invalid or unconstitutional
by any court of competent jurisdiction or by any state or federal
regulatory agency having jurisdiction, such portion shall be deemed
a separate, distinct or independent provision and such holding shall
not affect the validity of the remaining portions of this ordinance.
The franchise or privilege granted hereunder shall only be assignable
with the prior written consent of the municipality, which consent
shall not be unreasonably withheld, provided that the company may
assign, without prior written consent, this franchise to its lenders
as collateral security in connection with its financing activities,
or any business entity related to the company.
All prior ordinances or parts of ordinances and resolutions
relating to cable franchise ordinances are hereby repealed.
This ordinance is hereby duly executed and ordered into law
this 4th day of May, 2015.
