[HISTORY: Adopted by the Borough Council of the Borough of
North Wales 5-11-1994 as Ord. No. 670. Amendments noted where
applicable.]
A.
AREA OUTAGE
CABLE ACT or ACT
CABLE TELEVISION SYSTEM, CATV SYSTEM or SYSTEM
COMPANY
DOWNSTREAM TRANSMISSIONS
FCC
GROSS REVENUES
HEAD END
INTERACTIVE SERVICES
PARENT
PERSON
SUBSCRIBER
BOROUGH
TWO-WAY CAPABILITY
UPSTREAM TRANSMISSIONS
Definitions. For the purpose of this chapter, the following terms,
phrases, words and derivations shall have the meanings outlined below.
In addition, any terms not specifically defined herein shall have
the meanings set forth in the Act.
The condition existing when cable or equipment is damaged,
fails or otherwise malfunctions (collectively referred to hereinafter
as "malfunctions"), and eight or more subscribers receiving service
from that section of cable or that equipment receive unusable or no
service as a result of that malfunction.
The Federal Cable Communication Policy Act of 1984, as amended.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment,
that is designed to provide video programming and which is provided
to multiple subscribers.
A person who is the recipient of a franchise in accordance
with the provisions of this chapter.
Signals traveling from the head end to the subscriber's
location.
Federal Communications Commission.
All revenues derived by the company from the provision of
cable service, including but not limited to monthly fees charged to
subscribers for basic service; monthly fees charged to subscribers
for any optional service; pay television fees; pay-per-view fees;
FM service fees; commercial service fees; premium service fees; monthly
fees charged to subscribers for any tier of service other than basic
service; installation, disconnection, and reconnection fees; and convertor
rentals or sales. This sum shall be the basis for computing the franchise
fee payment. Items to be deducted in computing "gross revenues" include
any taxes paid by the company and which are imposed upon the company
or upon any subscriber or user by the state, county, city or other
governmental unit; or revenue from subscribers designated by the company
as payment of its franchise fee obligation.
The electronic center through which broadcast and cablecast
signals are electronically translated or modified for distribution
over the system.
Services based on the transmission of information on the
system from the subscriber's location to the head end.
Any person holding direct or indirect ownership or control
of 20% or more of the rights of control of a company, and any person
holding such ownership or control of a parent of a company.
Any individual, firm, partnership, association, corporation,
company or legal entity of any kind.
Any person receiving service from the system.
The Borough of North Wales, Montgomery County, Pennsylvania.
The ability to transmit audio, video and digital signals
upstream and downstream on a cable system.
Signals traveling from subscriber or other originating points
on the system to a head end or a sub-head end.
B.
Word usage. When not inconsistent with the context, words used in
the present tense include the future, words in the plural number include
singular number and words in the singular number include the plural
number. The word "shall" is always mandatory and not merely directory.
A.
The Borough Council is hereby authorized, in consideration of the
faithful performance and observance of the conditions and obligations
herein imposed, to grant to a company or companies by resolution the
nonexclusive franchise right, privilege, authority and easement to
construct, own, operate and maintain a system and to erect, maintain
and operate television transmission and distribution facilities and
other communication and information services and additions thereto
in, under, over, along, across and upon the streets, bridges and other
publicly owned places in the borough, and subsequent dedications and
additions thereto, for the purpose of transmission and distribution
of aural, visual and other communication signals in accordance with
the laws and regulations of the United States of America and the Commonwealth
of Pennsylvania and the ordinances and regulations of the borough
now in effect or hereafter enacted. The nonexclusive franchise, right,
privilege, authority and easement granted pursuant to this subsection
shall expire automatically at the end of a twelve-year term beginning
on the date of the enabling resolution referred to above, subject,
however, to the renewal provisions contained in the Act.
B.
The company or companies shall be required, after receiving a grant
by resolution of Borough Council, to exercise the nonexclusive franchise
to construct, own, operate and maintain a system and to enter into
a written franchise agreement with the borough in the manner and form
set forth by the Borough Solicitor stating that the company or companies
shall agree to adhere to and implement all requirements specified
by this chapter.
C.
The company shall have the right to renew the franchise in accordance
with the provisions of the Act.
A.
The further right, privilege and authority is hereby granted to the
company to lease, rent, subscribe to, service or in any other manner
obtain the use of towers, poles, lines, cables, facilities, services,
licenses and franchises within the limits of the borough; and to use
towers, poles, line, cables and other equipment and facilities, including
those owned by Bell of Pennsylvania and PECO Energy, subject to all
existing and future laws and regulations of the United States of America
and the Commonwealth of Pennsylvania and the ordinances and regulations
of the borough. The poles used for the company's distribution
system shall be those erected and maintained by the above-named telephone
and/or electric company when and where practicable, provided that
reasonable rental agreements can be entered into with said other companies.
B.
To the extent possible, the company shall make attachments to poles
already in existence within the borough. To the extent that existing
poles are insufficient, or if the company is unable to negotiate reasonable
agreements for the use of existing poles, the company shall have the
right to erect and maintain its own poles as necessary for the construction
and maintenance of its system, subject to borough approval in accordance
with all of its laws, ordinances, rules and regulations. Any pole
use agreement which provides for pole license fees payable by the
company in accordance with FCC rules and standards or which are approved
by the FCC or which provides for pole license fees which are substantially
comparable to pole license fees in other Montgomery County cable television
pole use agreements shall be deemed reasonable for purposes of this
section. The system plant shall be underground wherever the electric
and telephone utility plant is underground, including being moved
underground in all areas where the utility plant which is now aerial
is hereafter placed underground. In the event that any utility or
like company is reimbursed by the borough for relocation of its facilities
as part of the same work that requires the company to move its facilities,
the company shall be reimbursed upon the same terms and conditions.
A.
To the extent provided for under § 105-3 of this chapter, the company shall have the right and privilege to construct, erect, operate, and maintain in, upon, along, above, across, over and under the publicly owned, dedicated streets of the borough such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to its system, provided that permits are issued for the location of such poles subject to the written approval of the borough and, in addition, to so use and operate similar properties rented or leased from other persons for such purpose. All structures, lines and equipment erected by the company within the borough shall be so located as to cause the least interference with the use of the streets, alleys, easements and other public ways and places and with the rights and reasonable convenience of property owners. Further, the company shall comply with all ordinances of the borough now or hereafter in force.
B.
The company's rights and privileges shall be subordinate to
any prior lawful use or occupancy of the streets or other public property,
and shall not be exercised so as to interfere with the existing improvements
or with new improvements the borough may deem proper to make such
that the exercise of the company's rights and privileges tend
to hinder or obstruct the free use of the streets, alleys, bridges
or other public property. In the event that any equipment or facilities
of the company shall interfere with any such improvement existing
or intended to be made by the borough, the company shall, upon notice
from the borough, forthwith relocate said equipment and facilities
at the company's expense so as to eliminate said interference.
C.
In case of disturbance of any street, sidewalk, alley, public way, paved area or other surface caused by the direct actions of the company, the company shall, at its own cost and expense and in a manner approved by the Borough Engineer, replace and restore such street, sidewalk, alley, public way or other surface so disturbed to the condition existing before the disturbance occurred. Further, any opening or obstruction made by the company or its agents in the streets or other public places of the borough shall be guarded and protected at all times by the company by the placement of barrier fencing or boardings, the bounds of which shall be designated by warning lights between dusk and dawn. The extent and adequacy of barrier fencing, boardings and warning lights shall be determined by the Borough Manager. The company shall also restore to its original condition any private property damaged in the course of, or arising out of, the exercise of its rights and privileges hereunder. All restoration work done by the company pursuant to this Subsection C shall be done as soon as practicable after completion of the work or disturbance necessitating such restoration. At the discretion of Borough Council, the company may be required to enter into an escrow agreement or similar guaranty to ensure completion of the work required by this Subsection C.
D.
If, at any time during the term of the franchise, the borough shall
elect to alter or change the grade or alignment or route of any street,
sidewalk, alley, or other public way, the company shall remove, relay
and relocate its poles, wires, cables, underground conduits, manholes
and other fixtures at its own expense. In the event that any utility
or like company is reimbursed by the borough for relocation of its
facilities as part of the same work that requires the company to move
its facilities, the company shall be reimbursed upon the same terms
and conditions.
E.
Any poles or other fixtures shall be placed in such a manner as not
to interfere with the usual travel on streets, bridges and other public
ways.
F.
The company shall have the authority, in consultation with the Borough
Manager, to trim trees upon and overhanging the streets and other
public ways and places of the borough so as to prevent the branches
of such trees from coming into contact or interfering with the wires
and cables of the company. At the borough's option, such tree
trimming may be done by the borough with the reasonable cost thereof
to be paid by the company.
G.
The company shall, upon request of any person in possession of a
building moving permit issued by the borough, temporarily raise or
lower its wires to permit the moving of a building. The cost and expense
for such temporary raising or lowering of wires shall be chargeable
to the permit holder.
H.
Upon written request from the Borough Manager, the company shall
supply to such Borough Manager: true and accurate maps or plats of
all existing aerial and underground feeder lines, trunk lines, and
sub-trunk lines, vaults, pedestals and manhole covers; and a list
of educational and municipal buildings to which special services are
being provided.
I.
Construction and maintenance of the transmission distribution system
shall be in accordance with the provisions of the National Electrical
Safety Code, Sixth Edition, as it is amended and/or revised, and in
compliance with any applicable rules, regulations or orders in effect
as issued by any federal or state commission or any other public authority
having jurisdiction.
J.
All installations of equipment shall be durable, of a permanent nature,
and installed in accordance with good engineering practices as outlined
by the National Bureau of Standards, the American Institute of Electrical
Engineers and the American Society of Mechanical Engineers. The company
shall comply with all borough regulations, ordinances, and state and
federal laws now existing or hereinafter enacted. Further, the company
shall not interfere with the rights of the public or individual property
owners and shall not unduly interfere with the travel upon and use
of public places during the construction, repair and removal of the
company's facilities.
K.
All structures, lines, equipment and connections in, over, under
and/or upon the streets, sidewalks and other public ways and places
of the borough, wherever situated, shall be kept and maintained at
all times in a safe, suitable and substantial condition and in good
order and repair.
L.
In the construction, conduct, maintenance, and operation of its business
the company shall comply with all requirements of Borough ordinances,
resolutions, laws, rules, regulations and specifications heretofore
or hereafter enacted or established, including but not limited to
those concerning street work, street excavation, use and removal and
relocation of property within a street.
M.
The company shall not begin any construction, modification, replacement, removal or any major change whatever of its facilities in any public place without filing with the Borough Manager a plan of such work and receiving written approval therefor. This Subsection M does not apply, however, to actions taken by the company that are a normal part of operating and maintaining its service.
The company shall grant to the Borough, free of any cost or
expense, joint use of any and all poles owned by the company. The
borough shall pay to the company any make-ready and additional maintenance
costs incurred as a result of the borough's use of these poles.
After the rebuild of the system [described in § 105-19C(1) below], the company shall incorporate emergency audio or alphanumeric override capabilities. Activation of this emergency override capability shall give the borough or other agent control of all channels for a limited period of time sufficient for the purpose of transmitting brief audio or alphanumeric information and instructions to viewers to turn to a borough access channel for detailed information on the emergency. Upon rebuild, the access channel will be available for transmission of an alphanumeric signal from a modulator (supplied by the company at no expense to the borough) and an alphanumeric character generator (provided by the borough) under the control of the borough.
The company shall maintain an office in the borough or within
a fifteen-mile radius of the borough for the purpose of accepting
payments by subscribers and exchanging converters. The company shall
maintain a toll-free telephone number for the purpose of receiving
inquiries and complaints from its subscribers and the general public.
A.
Pursuant to the Act and FCC regulations, the borough does not now
have the authority to regulate expanded service charges to subscribers.
In the event that the borough obtains the right under applicable law
or regulation to regulate expanded service charges to subscribers,
consistent with these laws and regulations, the borough may require
that such charges be subject to borough approval.
B.
The company shall not subject any person to any prejudice or disadvantage,
preference or advantage in connection with rates, charges, service
facilities, rules or regulations. Nothing herein contained shall prohibit
reduced rates for senior citizens or charitable institutions or other
discounts allowable under law.
C.
Any change in rates by the company shall be preceded by at least
30 days' written notice thereof to the borough. The company shall
set forth in writing its billing practices and policies and shall
furnish a copy thereof, and updated changes in such policies or practices
as they occur, to the Borough Manager and to each subscriber.
D.
In the event that a subscriber's service is terminated, monthly
charges for service shall be prorated on a daily basis to the date
service was terminated.
E.
The company shall have the right to disconnect a subscriber for failure
to pay an overdue account, provided that:
(1)
The company billing practices and policies set forth conditions under
which an account will be considered overdue;
(2)
The company provides at least seven days' written prior notice
of the proposed disconnection and the reason therefor; and
(3)
The subscriber's account is at least 30 days delinquent.
The company shall:
A.
Promulgate and adhere to a preventative maintenance policy directed
toward maximizing the reliability (mean time between malfunctions)
and maintainability (based upon mean time to repair) of the system
with respect to its delivery of service to subscribers.
B.
Upon request from the Borough Manager, submit to the borough copies
of the most recent performance tests of the system submitted by the
company to the FCC. The Borough shall have the right, at its expense,
to employ consultants to conduct independent testing of system performance.
C.
For every service outage in excess of 24 continuous hours, upon request
from the affected subscriber(s), rebate a pro rata portion of the
regular monthly charge to each subscriber so affected. The twenty-four-hour
period shall commence at the time the company first becomes aware
of the outage. For purposes of this subsection, loss of basic service
or receipt of less than 2/3 of the available channels shall be considered
a service outage.
D.
Transmit signals of adequate strength to produce good pictures and
good sound at all outlets without interfering with other electrical
or electronic systems or equipment or with television reception of
sets in the area not connected to the system.
E.
Have a local listed telephone so operated that requests for repairs
or adjustments can be received at any time, 24 hours a day, seven
days a week. Under normal circumstances, the company will respond
within four hours to any area outage and shall respond within 24 hours
to a no-picture call from any subscriber.
F.
Whenever it is necessary to interrupt service for the purpose of
making repairs, adjustments or installations, do so at such times
as will cause the least amount of inconvenience to subscribers. The
company shall give reasonable notice to affected subscribers of all
interruptions in service, unless unforeseen and immediately necessary.
G.
Keep a record of all written complaints and trouble calls received
in connection with service to the borough's residents. Such records
may be disposed of after three years from the date of the complaint
or trouble call giving rise to the record. The trouble call records
will note the nature of the call, the remedial action taken and the
period of time required to satisfy the reported complaint. Upon request
from the Borough Manager, the company shall furnish to the borough
copies of performance reports, financial reports or other relevant
FCC filings.
A.
The company shall pay to the borough a franchise fee in the amount
of 5% of gross revenues. Payment shall be computed quarterly for the
preceding three months (or lesser period with respect to the first
payment hereunder) as of March 31, June 30, September 30 and December
31 of each calendar year. Each payment shall be accompanied by a statement
showing the factual basis for the computation of the fee.
B.
In addition, the company shall reimburse the borough for its publication
and notification costs in connection with the establishment of any
franchise and publication and notification costs incurred in the course
of modification of the terms of any franchise. Payment shall be made
within 30 days after receipt of billing therefor.
C.
The company shall file with the borough within 90 days of the expiration
of any calendar year during which a franchise is in force a financial
summary report showing gross revenues as defined herein, certified
on behalf of the company by a certified public accountant. The report
shall contain assurance that the company is in compliance with the
financial terms and provisions of this chapter.
D.
The company shall keep records of account showing payments and dates
received. A duly authorized agent of the borough shall have the right
to inspect and audit the current records of gross revenue of the company
during normal business hours after two weeks' written notice
of the same is conveyed to the company. The borough shall have the
right, at its own expense, to audit the records of gross revenue of
the company for any annual period at any reasonable time within three
years after expiration of the subject annual period. If any such audit
shows that the company has underpaid the franchise fee by 5% or more,
the company shall reimburse the borough for the cost of such audit.
E.
No acceptance by the borough of any payment shall be construed as
an accord that the payment is in fact the correct amount, nor shall
such acceptance of payment be construed as a release of any claim
that the borough may have for further or additional sums payable under
the provisions of this chapter.
A thirty-day prior written notice to the borough and written
approval by the borough shall be required for a change of ownership
or control of the system, the franchise, system property or facilities
which will leave the company unable to substantially perform its obligations
hereunder, or any transfer in which direct or indirect ownership or
control of 50% or more of the rights of control of the company or
any parent company is acquired by one or more persons who do not then
own or control 10% or more of such right of control singularly or
collectively. In reviewing a request for sale or transfer pursuant
to this section, the borough may only inquire into the legal, technical
and financial qualifications of the prospective controlling party.
The borough shall not reasonably delay or withhold approval. Any pledge
or collateralization of assets or stock of the cable system or transfer
of assets or stock to a financial institution for refinancing purposes
shall be excluded from the provisions of this section, but the exercise
of any right to foreclose upon or seize such assets shall be included.
If a subscriber or the person in possession of a premises served
by the system so requests, and only upon such request, the company
shall promptly remove all of its overhead facilities and equipment
from such subscriber's premises without charge. Any subscriber
may terminate service pursuant to this section at any time.
At the expiration of the term for which the franchise is granted
or any extension thereof or upon its termination and cancellation
as provided for herein, the borough shall have the right to require
the company to remove at its own expense all aerial and underground
portions of the system from all public ways within the borough. The
Borough may deem abandoned any portion of the system not removed within
12 months after expiration or termination of the franchise and may,
as its sole option, assume title thereto or, with respect to aerial
plant only, may remove such aerial plant at the company's expense.
The company shall furnish cable service to all locations in
the borough which are capable of receiving service under normal circumstances
from the company's system plant. Service to any subscriber to
be served by an aerial drop shall commence within 10 days after service
is requested; 60 days for underground service, under normal circumstances.
Cable television service shall be provided to any subscriber who requests
service and who is located within 150 feet of the feeder cable at
the regular installation charge. Subscribers located beyond 150 feet
from the feeder cable will be charged the regular installation fee
plus the extra cost of labor and materials required to extend the
drop beyond 150 feet.
The company shall make available at cost to any subscriber so
requesting a parental-guidance or lockout device which will permit
the subscriber to eliminate comprehensible reception of any or all
of the pay cable channels. Such devise may be part of a converter,
remote control or similar equipment.
A.
Notice of violation. Upon the Borough Manager serving the company
with written notice that the company has failed to comply with any
provision of this chapter, a twenty-day period shall begin to run,
during which time company shall cure such violation. In the alternative,
the company may, within 10 days of receiving such notice, notify the
borough in writing that there is a dispute as to whether a violation
has occurred. Such notice by the company to the borough shall specify
the matters disputed by the company. The Borough Council shall then
hear the company's dispute at the next regularly scheduled council
meeting, if possible.
B.
Council hearing. If the dispute is not heard at the next regularly scheduled Council meeting no damages or other penalties shall accrue against the company during the period of time after the subject regularly scheduled Council meeting and before the time the dispute is in fact heard by Council. The borough and the company shall bear their own costs and attorney's fees for such hearing. After the binding determination of Council at a hearing provided for in this subsection, the company may appeal a disputed matter to arbitration in accordance with the provisions of § 105-37.
C.
Revocation procedures. In the event that the Borough determines that
there has been a material breach or continuing violation of this chapter,
or breach of any material provision of an applicable federal, state
or local law, the borough may give the company notice of its intent
to pursue revocation proceedings and make a written demand on the
company that it remedy such breach or violation. If the violation,
breach, failure, refusal or neglect is not remedied within 30 days
following such demand or within such other period as both parties
mutually agree or if the company is not diligently working toward
a cure or if the material violation, breach, failure, refusal or neglect
by the company is not due to acts of God or other causes which result
from circumstances beyond the company's control, the following
process shall govern:
(1)
A public hearing shall be held before Council upon seven days'
written notice to the company of the time and the place of the hearing.
The breach or violation giving rise to the hearing shall be set forth
in such notice.
(2)
If after such hearing the borough determines there is a material
or continuing violation, breach, failure, refusal or neglect, the
borough shall direct the company to correct or remedy the same within
such additional time, in such manner and upon such terms and conditions
as the borough may direct.
(3)
If after such hearing the borough determines there was a material
or continuing violation, breach, failure, refusal or neglect, then
the borough may declare, by resolution, the franchise previously granted
to the company revoked and canceled and of no further force and effect
unless there is compliance within such period as the borough may fix,
such period not to be less than 20 days.
(4)
The issue of revocation shall automatically be placed upon the Council
agenda at the expiration of the time set by it for compliance. The
borough then may terminate the franchise previously granted forthwith
upon finding that the company has failed to achieve compliance or
may further extend the period, in its discretion.
(5)
Upon expiration or termination of the term of the franchise the company
shall remove, at its own expense, all aerial portions of the system
from all public ways and places within the franchise area.
A.
If the company fails to observe any of its franchise obligations specified in this chapter, the borough may assess the company and the company agrees to pay to the borough a monetary penalty in accordance with the schedule set forth in Subsection F below. Such assessment shall not constitute a waiver by the borough of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its rights to recover from the company and its sureties such additional damages, losses, costs and expenses as may have been suffered or incurred by the borough by reason or arising out of such breach of the franchise or this chapter.
B.
Upon the borough's assessing a penalty pursuant to Subsection A above, notice of such assessment shall be sent to the company with a concise reason for the statements therefor.
D.
The company shall pay the full amount of any penalty within 20 days after receipt of a notice pursuant to Subsection B; provided, however, that in the event that the company cures the subject violation within those 20 days no penalty shall be imposed. If the company requests a hearing pursuant to Subsection C above, the company shall not be obligated to pay such penalty until a final determination of Council is rendered pursuant to § 105-16B above.
E.
Amounts received by the borough as penalties pursuant hereto may
be used by the borough for any purpose.
F.
The following is a schedule of penalties:
|
Violation
|
Penalty
|
|---|---|
|
Failure to comply with § 105-4H
|
$10.00 per day
|
|
Failure of the system to perform pursuant to § 105-6 during an emergency or public information situation
|
$50.00 per occurrence
|
|
Failure to make payment of the franchise fee within 30 days of the specified time pursuant to § 105-10
|
1% of outstanding franchise fee due per day
|
|
Failure to reimburse the borough within the specified period pursuant to § 105-10B
|
$25.00 per day
|
|
Failure to commence service within the speci- fied time period pursuant to § 105-14
|
$25.00 per day
|
|
Upon revocation of the franchise pursuant to § 105-16
|
Forfeiture of the performance bond
|
|
Failure to maintain insurance pursuant to § 105-18
|
$50.00 per day
|
|
Failure to maintain the performance bond pursuant to § 105-18
|
$25.00 per day
|
A.
The company shall pay, and by its acceptance of the franchise the
company specifically agrees that it will pay, all damages and penalties
which the borough may otherwise be required to pay as a result of
the company's activities. These damages or penalties shall include,
but not be limited to, damages arising out of copyright infringements
and all other damages arising out of the installation, operation or
maintenance of the system authorized herein, whether or not any act
or omission complained of is authorized, allowed or prohibited by
this chapter.
B.
The company shall pay, and by its acceptance of the franchise specifically agrees that it will pay, all expenses incurred by the borough in defending itself with regard to all damages and penalties noted in Subsection A above. These expenses shall include all out-of-pocket expenses, such as attorney's fees, and shall also include, but not be limited to, the cost of any services rendered by the Borough Solicitor or any other employee of the borough only to the extent, however, that expenses are incurred above and beyond those expenses the borough would pay in normal course and which are directly attributable to the borough defending itself in connection with an action referenced in Subsection A of this section.
C.
Insurance.
(1)
The company shall maintain, and by its acceptance of the franchise specifically agrees that it will maintain, throughout the terms of the franchise liability insurance insuring the borough and the company with regard to all damages mentioned in Subsection A above, in the minimum amounts of:
(2)
All policies of insurance shall list the borough as an additional
insured and contain a provision stating that the subject policy shall
not be terminated, expire or fail in any way to remain effective without
60 days' prior written notice to the borough.
D.
Bond.
(1)
The company shall maintain, and by its acceptance of the franchise
specifically agrees that it will maintain, throughout the term of
the franchise a faithful performance guaranty (in the form of a letter
of credit, bond or cash) running to the benefit of the borough in
a sum not to exceed $10,000 to provide that the company shall well
and truly observe, fulfill and perform each term and condition of
this chapter and that, in case of any breach of condition of the franchise
or this chapter, the amount thereof shall be recoverable from the
principal surety thereof by the borough for all damages resulting
from the failure of the company to well and faithfully observe and
perform any provision of this chapter. The bond shall be in a form
satisfactory to the Borough Solicitor. Whether a performance guaranty
is required, and the amount thereof, shall be set forth in the franchise
agreement by and between the company and the borough.
(2)
Relief from the bonding provisions shall be exclusively within the
discretion of this Borough Council.
E.
The insurance policies and bonds obtained by the company pursuant to subsections C and D above shall be with companies authorized to do business in the Commonwealth of Pennsylvania. Such insurance policies or acceptable evidence thereof, and bond, along with written evidence of payment of required premiums, shall be filed and maintained with the Borough Manager during the term of the franchise.
F.
All expenses of the above-noted insurance and bond shall be paid
by the company.
A.
Upon the rebuild [described in Subsection C(1) below], the company shall provide each public, private and parochial school, fire station, public library and the borough hall with one cable outlet and basic service without charge.
B.
Access channels.
(1)
The company shall comply with the present and future rules and regulations
of the FCC in connection with or relating to the operation of its
system and shall provide a minimum service offering as follows:
(a)
Local governmental and emergency access channel. The company
shall maintain at least one specifically designated, noncommercial
local government and emergency access channel.
(b)
Educational access channel. The company shall maintain at least
one specifically designated channel for use by the North Penn School
District, the borough or their designees.
(2)
The company may use the access channels during any periods in which
they are not used for access purposes, provided that access use shall
have priority at all times.
C.
Channel capacity.
(1)
The company shall agree that within 36 months from the date of this
chapter, it will rebuild its current facilities within the borough
or establish a new system so as to provide minimum channel capacity
of 77 television channels. This rebuild will entail a hybrid plant
consisting of fiber optic and coaxial cables which will have the capability
of providing 77 channels through a cable plant of 550 megahertz (mgz).
(2)
All construction shall be performed in a professional and workmanlike
manner and will be in accordance with all specifications of the National
Electrical Code. The National Electrical Safety Code and other applicable
federal and state codes governing the operation, construction, maintenance
and repair of a cable system.
(3)
The company shall additionally agree to meet or exceed the technical
standards set forth in 47 CFR 76.601 of the FCC Rules and Regulations.
D.
The company shall make available to borough residents portable cameras
for the purpose of taping local access programming. All equipment
will be available on a first-come, first-serve basis. The company
will make available training on the proper use of said equipment and
reserves the right to deny use unless residents attend a training
class on proper equipment use.
The company shall not hire or refuse to hire or employ nor bar
or discharge from employment nor discriminate for or against any person
in compensation or in terms, conditions or privileges of employment
because of age, race, creed, color, national origin or sex. The company
shall not deny service or access or otherwise discriminate against
subscribers, programmers or other persons in violation of the Constitution
of either the United States or the Commonwealth of Pennsylvania.
Notwithstanding any other provision of the franchise, in the
event of expiration, revocation or termination of the franchise, the
borough may, in consultation with the company, nevertheless extend
the term thereof beyond such termination, revocation or expiration
date for such period of time, not to exceed two years, as the borough
may specify by giving the company such notice as is reasonable in
the circumstances. In the event of any such extension, the company
shall continue to operate its system in accordance with all the provisions
of the franchise.
The company shall take all reasonable measures to ensure that
all of its vehicles and employees are clearly identified to the general
public as being associated with the company.
Upon request the company shall submit to the borough copies
of all pleadings, applications, reports, communications and documents
of any kind, except tax returns, submitted by the company to any federal,
state or local court, regulatory agency and any other governmental
body relating to the company's cable television operations hereunder
which directly involve the franchise or system within a reasonable
period of time after request is made. Further, upon request, the company
shall submit to the borough copies of all decisions, correspondence
and action by any federal, state or local court, regulatory agency
and any other governmental body relating to its cable television operations
hereunder which directly involve the franchise or system within a
reasonable period of time.
A.
The right is hereby reserved to the borough to adopt, in addition
to the provisions contained herein and in existing applicable ordinances,
such additional regulations as it shall find necessary in the exercise
of the police power.
B.
Upon request, the borough shall have the right to inspect the books,
records, maps, plans, audited financial reports and any other like
materials of the company pertaining to the system, at any time during
normal business hours, provided that two weeks' notice of such
inspection is given to the company. Such inspection shall take place
at the company's local, regional business office, and the company
shall have a reasonable period of time within which to bring such
local office any requested material kept at other locations.
C.
The borough shall have the right to inspect all construction or installation
work performed subject to the provisions of this chapter or the franchise
and make such inspections as it shall find necessary to ensure compliance
with the terms of the franchise and other pertinent provisions of
law, including but not limited to the Act.
The company shall have the right at all times to take any and
all legal action it deems necessary to preserve the security of its
system and to assure appropriate use thereof by its subscribers. In
addition to the foregoing rights reserved to the company, any person
who willfully or maliciously damages or causes to be damaged any wire,
cable conduit, apparatus or equipment of the company or who taps,
tampers with or connects any wire or device to a wire, cable, conduit
or equipment of the company with intent to obtain a signal or impulse
therefrom without authorization of the company shall, for each and
every violation, upon conviction thereof, be subject to a fine or
penalty of up to $300 for each and every offense. Prosecution of any
offenses charged hereunder shall be the responsibility of the company.
A.
The Borough Council may establish an Advisory Board for Cable Television
to be appointed by the Council of the borough.
B.
The Cable Television Advisory Board (the "Board") shall be composed
of three members appointed by Borough Council who shall be residents
of the borough and shall serve for terms of three years, and the initial
term of another member shall be for only two years, so as to ultimately
provide for appointment to a three-year term to occur in each successive
year. Any vacancy shall be filled by the Council by appointment for
the remainder of the term. No employee or person with ownership interest
in any cable television franchise granted pursuant to this chapter
shall be eligible for membership on the Board. The Board shall annually
elect one of its members to serve as Chairperson. Action of the board
shall require a vote of three of its members. A company may appoint
an ex officio, but nonvoting, member of the Board. The Board shall
have the following functions:
(1)
To advise the borough on applications for franchise and on franchise
renewals.
(2)
To advise the borough on matters which might be grounds for revocation
of the franchise or imposition of penalties in accordance with this
chapter.
(3)
To assist in the resolution and disagreements among and between the
company, subscribers and/or public or private users of the system.
(4)
To advise the borough in respect to rates, to policy relating to
the services provided to subscribers and to the operation and use
of public channels and to the availability of channel time for lease
or pay-cable programs and business users of informational programming.
(5)
To cooperate with other systems.
(6)
To audit all company records as required by this chapter and, at
the board's discretion, require preparation and filing of information
additional to that required herein, such additional information to
be directly relevant to the company's operation under this franchise.
(7)
To make an annual report to the borough, including the account of
franchise fees received and distributed, the total number of hours
of utilization of public channels and hourly subtotals for various
programming categories, and to review of any plans submitted during
the year by the company for development of new services.
(8)
To conduct an evaluation of the system at least every three years,
in consultation with the company and utilizing technical consultants
if necessary, and pursuant thereto to make recommendations to the
Borough for amendments to this chapter.
(9)
To review and make recommendations for any revision of insurance
and bond limits.
(10)
To promote and develop the best use by the community of the
cable television and communication services offered in the borough.
(11)
To study, review and make recommendations for the purchase of
equipment necessary to utilize the local and government access channels.
(12)
To develop ideas for local programming on the local access channel.
(13)
To make recommendations to the North Wales Borough Council for
specific programs, and, upon authorization by the North Wales Borough
Council, to produce such programming for the public access channel.
C.
A company representative shall be given reasonable notice of all
Board meetings.
If any provision of the franchise is held by any court or federal
or state agency of competent jurisdiction to be invalid as conflicting
with any federal or state law, rule or regulation, now or hereafter
in effect, or as held by any such court or agency to be modified in
any way in order to conform to the requirements of any such law, rule
or regulation (collectively the "law"), said provision shall be considered
as a separate, distinct and independent part of the franchise, and
such holding shall not affect the validity and enforceability of other
provisions hereof. In the event that such law is subsequently repealed,
rescinded, amended or otherwise changed so that the provision hereof
which had been held invalid or modified is no longer in conflict with
the laws then in effect, said provision shall thereupon return to
full force and effect and shall thereafter be binding on the parties
hereto.
It is fully understood that the borough shall not be liable
for any cost of any kind incurred by the company resulting from any
portion of this chapter's being held invalid, unauthorized or
unconstitutional, nor shall the borough be obligated to litigate the
validity of the franchise unless the cost thereof shall first be guaranteed
by the company in a manner satisfactory to the Council.
The rights granted to the company shall become effective upon
the execution of a franchise agreement between the borough and the
company, binding both parties to comply with the provisions of this
chapter.
Upon rebuild pursuant to § 105-19C(1)(a), the CATV
system shall incorporate equipment capable of providing standby powering
of the head end for a minimum of four hours upon failure of the power
furnished by the utility company.
The company shall not make available the names or addresses
of any or all of its subscribers to any third party except in accordance
with federal law.
Insofar as practicable, the company shall adhere to the subscriber's
desire with regard to point of entry and inside routing of the drop
connection into and through the structure in possession of the subscriber.
The borough may delegate to any borough official, employee,
agency, board or commission the authority to exercise any of the borough's
rights and authorities hereunder.
The company shall furnish to each subscriber so requesting,
at cost, a switch permitting the subscriber to change from cable reception
to home antenna reception and back at the subscriber's option.
The company may require such subscribers to have the home antenna
properly grounded, at the subscriber's expense.
The company shall comply with all FCC requirements for reporting
and resolving subscriber complaints.
A.
In furtherance of the general policy that the services provided be
innovative and modern, a grantee will actively pursue a continuous
policy of incorporating new technical developments into the system,
insofar as is technically and economically viable as determined by
the company.
B.
To facilitate this policy and to achieve a continuing, advanced,
modern system:
(1)
The Council may hold a regular review hearing within 30 days of the
third anniversary date of the execution of the franchise. Subsequent
review hearings shall be scheduled every third year. All such review
hearings shall be open to the public, and notice shall be given by
advertisement twice in a newspaper of general circulation at least
one week before each session. In addition, the company shall announce
the date and time of each such session on each of at least five days
immediately preceding each session at a minimum of six regularly scheduled
intervals daily on a channel on the cable system.
(2)
Topics for discussion and review at both the regular and special
review hearings shall include, but shall not be limited to, services,
application of new technologies, system performance, services provided,
programming and subscriber complaints. Either the borough or the company
may select additional topics for discussion at any regular or special
review hearing.
If the company exercises its option to require arbitration pursuant
to any of the provisions of the franchise, its notice exercising such
option shall include the name of one arbitrator appointed by the company.
The borough shall appoint one arbitrator and notify the company thereof
within 14 days after receipt of such notice from the company. The
two arbitrators thus selected shall select a third arbitrator or,
failing agreement within 30 days, shall request the American Arbitration
Association (AAA) to appoint the third arbitrator. Hearings shall
be conducted and a decision reached as expeditiously as possible and
shall be conducted in accordance with AAA rules. Each party shall
be responsible for the costs of its arbitrator and 1/2) the costs
of the third arbitrator.
The Borough Solicitor may institute proceedings in law or equity
before the appropriate tribunal (including, but not limited to, the
Court of Common Pleas of Montgomery County) for the purpose of obtaining
judgment against the company and collecting any fine or penalty hereby
imposed; and/or enjoining any violation or potential violation of
this chapter. Any such violation shall be conclusively presumed to
be of immediate and irreparable harm to the citizens of the borough.
