[HISTORY: Adopted by the Board of Commissioners of the Township of
Abington 6-13-1991 by Ord. No. 1694. (This
ordinance specifically repealed former Ch. A167, Cable Television Franchise,
adopted 1-3-1966 by Ord. No. 1176, as
amended.) Amendments noted where applicable.]
Comcast Cablevision Corporation (PA), a Pennsylvania corporation (the
"company"), is authorized and granted the right to use poles, wires and cables
over, under and upon the streets, sidewalks, alleys, bridges and highways
and other public places in the Township of Abington for the operation of a
community antenna television system.
The authorization herein granted is conditioned upon compliance with
the following terms and conditions:
A.Â
The poles, wires or cables must be used for transmission
of audio, visual and or data signals by means of electrical impulses to any
type of receiver (e.g., telephone, computer, radio or television) in the Township
of Abington.
B.Â
No poles may be erected without the consent of the Township
of Abington, and the decision of its Board of Commissioners relative thereto
shall be final; provided, however, that any poles erected by company shall
be available to the township, free of expense, for any proper municipal purposes
insofar as may be done without interfering with the free use and enjoyment
of the company's own wires and fixtures, and the township shall hold
the company harmless from any and all actions, causes of action or damage
caused by the placing of the township's wires or appurtenances upon the
poles of the company. Proper regard shall be given to all existing safety
rules governing construction and maintenance in effect at the time of construction.
C.Â
Wires and cables shall be installed underground when
required by the township, and all installation by the company of poles, wires,
cables and all other facilities relative to its operation shall be in accordance
with the provisions of the National Electrical Safety Code prepared by the
National Bureau of Standards and the National Electrical Code of the National
Board of Fire Underwriters and shall comply with all state and federal laws
and regulations and such applicable ordinances and regulations of the Township
of Abington affecting electrical installations which may be presently in effect
or changed by future ordinances. The poles, cables or wires shall not unreasonably
interfere in any manner with the right of the public or any individual private
property owner and shall not interfere with travel or use of public places
by the public during the construction, repair or removal and shall not obstruct
or impede traffic.
D.Â
The company shall comply with all applicable provisions
of the rules and regulations of the Federal Communications Commission.
F.Â
There shall be provided broadcast facilities in the Township
Building to permit the Township Police Department to make emergency announcements
on the audio portion of all cable channels, said facility to be free of charge
to the township. In addition, five cable outlets shall be made available free
of any monthly service fee to each public and parochial school, police station
and firehouse, the Abington Friends School, the Meadowbrook School and the
Jenkintown Day Nursery School and other public buildings situated within the
cable system coverage area. The actual cost of the tap-off connection in excess
of $20 for each connection shall be paid by such user.
G.Â
On or before January 15 of each year, the company shall
publish a complete schedule of rates for all areas served by said company.
H.Â
The company shall, upon request, provide service to any
residence in the township; provided, however, that nothing herein shall require
the company to build new trunk or feeder cable in cases where the company
determines it would not be economically feasible to do so.
The company may enter into an agreement with any person or corporation,
including the Bell Telephone Company of Pennsylvania and the Philadelphia
Electric Company, now or hereafter authorized to erect poles, overhead wires
or cables and underground wires or cables, for the purpose of sharing those
facilities, subject to all existing and future ordinances and regulations
of the township.
A.Â
The authorization granted by this ordinance is a nonexclusive
franchise, and nothing contained herein shall prevent the grant of additional
franchises to any other person or corporation upon any terms and conditions.
The term shall be for a period of five years from the adoption of this ordinance,
which term shall be automatically extended for an additional term of 10 years
without further action by the Township Board of Commissioners, provided that
the following conditions are met:
(1)Â
The company shall upgrade to current technology its existing
channel capacity to provide in its discretion, between five and 10 additional
nonpremium channels on its lineup by January 31, 1996; no extension of time
shall be asked for or granted.
(2)Â
The company shall make available to the Township of Abington
one channel for public, educational and government access purposes by December
31, 1991.
B.Â
The company shall provide progress reports on the channel changes set forth in Subsection A above at regular six-month intervals beginning on December 31, 1991, until such changes have been instituted, at which time the Township Manager shall certify in writing that the changes have been completed.
C.Â
Failure by the company to institute such changes within the time periods set forth above shall not constitute material noncompliance with the terms hereof entitling the township to take action pursuant to § A167-7 hereof but shall cause the franchise to expire at the end of the fifth year as provided in § A167-4A.
D.Â
This franchise may be renewed for an additional term
or terms. Upon any expiration of the franchise, the parties shall be governed
in their negotiations for a new franchise by the provisions of the Cable Communications
Policy Act of 1984 and any other applicable law.
For the authorization granted by this ordinance, there shall be paid
by the company an annual license fee to the Township of Abington, as follows:
A.Â
The company shall pay to the Township of Abington annually
an amount equal to 5% of the gross subscriber revenue received by the company
from residents of Abington Township. If the federal law is changed to allow
a payment higher than 5%, the company agrees to pay the higher amount beginning
on the effective date of the law.
B.Â
Should the company obtain additional revenue from the
operation of the system in the Township of Abington from all other sources
(e.g., advertising carried through the system), it shall pay to the Township
of Abington an amount equal to 5% of such additional revenues prorated on
the basis of the number of subscribers served by the company's system
in the township.
D.Â
The company shall make payments to the township of the
amount owing within 60 days after the last day of each calendar quarter. Each
year, the company shall provide the township with a certified statement in
a form reasonably acceptable to the township as to the gross revenues received
by it from operations within the township. The Township of Abington shall
have the right, by its duly authorized representative, to examine the books
and records of the company to verify the accuracy of payments due hereunder.
A.Â
The company shall indemnify, protect, defend and save
harmless the township, its agents and employees from all and any claims for
personal injuries or property damages or death to persons, including payments
made under any workmen's compensation law, and any other claims and costs,
including attorney's fees, expenses of investigation and litigation of
claims and suits thereon which may arise out of or be caused by the erection,
maintenance, presence or use of or removal of said attachments on poles within
the township or by any act of the company, its agents or employees. The company
shall carry insurance to protect the township from and against all claims,
demands, actions, judgments, costs, expenses and liabilities which may arise
or result, directly or indirectly, from or by reason of such loss, injury
or damage. The amounts of such insurance against liability due to physical
damages to property shall not be less than $500,000 as to any one accident
and not less than $200,000 aggregate in any single policy year and, against
liability due to bodily injury or to death of person, not less than $1,000,000
as to any one person and not less than $1,000,000 as to any one accident.
The company shall also carry such insurance as it deems necessary to protect
it from all claims under the workmen's compensation laws in effect that
may be applicable to the company. Said policy or policies of insurance or
a certified copy or copies thereof shall be approved by the President of the
Board of Commissioners of said township, together with the Solicitor of said
township, and shall then be deposited with and kept on file by the Secretary
of the Board of Commissioners of the Township of Abington.
B.Â
The company shall indemnify, protect, defend and save
the township harmless from and against any liability or responsibility to
the holder of any copyright which the township shall at any time sustain or
incur by reason or in consequence of the exercise by the company of any right
or privilege granted to the company by this ordinance or which the township
may sustain or incur in connection with any litigation incident to the claiming
or sustaining of such liability or responsibility arising out of or in connection
with the exercise by the company of any right or privilege granted to the
company by this ordinance. If, as and when the company shall obtain insurance
against liability to the holder of any copyright, the company shall include
the township as a coinsured and provide a certificate of insurance thereof
to the township.
Should the company at any time fail to comply with any of the material
terms and provisions of this ordinance after receiving 30 days' written
notice from the township of a violation or default, then said authorization
may be terminated by the township. No such termination shall take place except
as directed by vote of the Board of Commissioners taken at a duly noticed
public meeting upon not less than 30 days' notice to the company and
at which the company and any interested member of the public may speak. Upon
termination by the Board of Commissioners, the company shall cease its operations
and may remove any and all wires, cable or poles installed by it pursuant
to this authorization. In addition, the township may proceed to take appropriate
legal action to collect any sums due it on account of unpaid license fees
and may proceed in law or equity to enforce any and all of the provisions
of this ordinance.
The company shall at all times comply with the provisions of the applicable
state and federal law. To the extent any provisions of this ordinance conflict
with applicable state or federal law, they shall be superseded and of no force
and effect.
A.Â
The company, at its own cost and expense and in the manner
approved by the Township Engineer, shall replace and restore all paving, sidewalks,
driveways or surface of any street or alley disturbed in as good condition
as before said work was commenced and shall maintain the restoration in an
improved condition for a period of one year from the date of making the same.
Failure of the company to replace or restore such paving, sidewalk, driveway
or surface of any street or alley within seven days after completion of the
company's work shall authorize the township to cause the proper restoration
to be made and the expense thereof to be charged to the company, which shall
be paid by the company upon demand by the township.
B.Â
In the event that at any time during the period of this
franchise the township shall lawfully elect to alter or change the grade of
any street, alley or other public way, the company, upon reasonable notice
by the township, shall remove, relay, and relocate its poles, wires, cables,
underground conduits, manholes and other television conductors and fixtures
at its own expense.
The township shall have access at all reasonable hours to all of the
company's plans and engineering records relating to its property in the
township and to all accounting records relating to revenues derived in the
township. Copies of all rules and regulations, terms and conditions adopted
by the company for the conduct of its business in the township shall be filed
by the company with the township and shall be kept by the company in its local
office.
In the event of a revocation of this franchise by the Township of Abington pursuant to the provisions of § A167-7 hereof, the township shall have the right to determine whether the company shall continue to operate and maintain its distribution system pending the decision of the township as to the future maintenance and operation of such system and to fix the terms and conditions thereof. If the township shall elect to operate the system, the company grants the township the option to purchase and take over the property of the company located in the Township of Abington upon the payment of the purchase price determined as herein provided. The purchase price shall be determined as follows:
A.Â
The purchase price shall be the fair market value of
the property and business of the company to be acquired hereunder, valued
as a going concern as of the date of the exercise of this option, as determined
by agreement of the parties hereto. If the parties hereto fail to agree upon
the fair and reasonable market value of said business and property, the same
shall be fixed and determined by a board of three disinterested appraisers,
one each of whom shall be selected by the township and the company. The two
appraisers thus selected shall select a third appraiser. The township and
the company shall select their appraisers within 10 days after the date of
the exercise of the option herein granted. The two appraisers selected aforesaid
shall select a third appraiser within 10 days after their selection by the
township and the company respectively. In default thereof, the third appraiser
shall forthwith be selected and appointed by the President Judge of the Court
of Common Pleas of Montgomery County, Pennsylvania. The three appraisers thus
selected shall file their appraisal of the fair market value of the business
and property of the company as a going concern as of the date of the exercise
of the option within 60 days after the selection of the third appraiser as
aforesaid. Said appraisals shall be in writing and shall be filed with both
the township and the company.
B.Â
Upon the payment of the appraised value thus established
by the township to the company, the company shall execute all deeds of instruments
of conveyance necessary to transfer title to the business and property of
the company free and clear of any and all liens and encumbrances.
The privileges granted by this ordinance shall not be exercised unless
within 30 days from the date of the enactment of this ordinance the company
agrees, in writing, to accept and comply with all of the provisions, terms
and conditions herein contained.
The authorization granted by this ordinance shall not be assignable
by the company except with the consent of the township. Notwithstanding the
foregoing, the authorization granted by this ordinance may be assigned to
any subsidiary or affiliate of Comcast Cablevision Corporation without the
consent of the township.
A.Â
Until the company makes available the access channel as specified in § A167-4 hereof, the company shall provide an alphanumeric community bulletin board on Channel 36 at such reasonable times as the company and the Township of Abington mutually agree.
B.Â
The company shall provide coverage of five township events,
selected by the Township of Abington, each year during the term of the authorization
granted by this ordinance.
C.Â
The company shall each year provide at least one hour
of professionally prepared videotape featuring the Township of Abington and
shall air such tape at such reasonable times as the company determines.
If after the date of this agreement the company executes an agreement
with Upper Moreland, Lower Moreland, Cheltenham, Jenkintown, Bryn Athyn or
Rockledge Township or any other community served by Comcast Willow Grove,
which provides for services or compensation to the township greater than that
provided herein, the township shall automatically and immediately receive
such amended service or fee from revenue generated in the township unless
the township elects, in writing, to the company not to change the compensation
or services. If and when Comcast enters into such an agreement with any of
the communities served by Comcast Willow Grove, the company shall notify Abington
Township, and the township shall either immediately proceed to amend its ordinance
to match the appropriate section of the newly adopted ordinance of the other
community or notify the company, in writing, that it does not wish to amend
the ordinance.
If any section, sentence, clause or phrase of the ordinance is for any
reason held illegal, invalid or unconstitutional, such invalidity shall not
affect the validity of the ordinance as a whole, and any portions in conflict
are hereby repealed.
A.Â
The company shall maintain a local business office at
a suitable location in the community so that cable television maintenance
service shall be promptly available to subscribers upon telephone request
during reasonable business hours. This requirement shall be satisfied if the
company provides access by local toll-free telephone call to the business
office or agent in the local area. All subscriber complaints regarding the
quality of service, equipment malfunctions and similar matters shall be acted
upon by the company as soon as possible, but in no event more than three business
days from the time of their receipt. The company shall give notice of the
procedures for reporting and resolving complaints to each subscriber at the
time of initial subscription to the system. The township appoints its Township
Secretary for implementation of complaint procedures. The Township Secretary
shall be advised in writing at all times by the company of the office address
and telephone number of the company. It is understood that neither the township
nor the Township Secretary is assuming any legal liability in connection with
the installation, maintenance or operation of the cable television system.
B.Â
In the event that the company or any successor thereto
moves the location of its office currently located in Willow Grove, Pennsylvania,
then the company shall move its office to the Township of Abington.
