Township of Allegheny, PA
Westmoreland County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Supervisors of the Township of Allegheny as indicated in article histories. Amendments noted where applicable.]
[Adopted 8-13-2001 by Ord. No. 8-2001]

§ A253-1 Authority.

A. 
Statement of intent and purpose. The Township of Allegheny Board of Supervisors intend, by the adoption of this ordinance, to authorize the operation of a cable system by Robinson/Plum Cablevision, L.P., d/b/a Adelphia Cable Communications, within the Township territorial boundaries.
B. 
Authority. To the extent that the same may be lawfully given and subject to the provisions of any and all acts of the General Assembly of the Commonwealth of Pennsylvania and regulations thereunder, now or in the future, and insofar as the Commonwealth of Pennsylvania has delegated to the Township the authority to grant a franchise for the provision of cable television service and other communication and information services within the Township territorial boundaries, in consideration of the faithful performance and observation of the conditions and reservations mutually agreed upon herein, the Township hereby exercises its authority to grant a nonexclusive franchise permitting the operation of a cable television system and the provision of other communications and information services within the Township.

§ A253-2 Short title.

This ordinance shall be known and cited as the "Township of Allegheny Cable Franchise Ordinance 8-2001." Within this document, it shall also be referred to as this "franchise."

§ A253-3 Definitions.

For the purpose of this franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. Words not defined shall be given their common and ordinary meaning.
BOARD OF SUPERVISORS
The Board of Supervisors of the Township of Allegheny, County of Westmoreland, Pennsylvania.
CABLE SERVICE
The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
CABLE SERVICE TERRITORY
The area to be served by Robinson/Plum Cablevision, L.P., d/b/a Adelphia Cable Communications, which includes the Township of Allegheny, County of Westmoreland, Pennsylvania.
CABLE SYSTEM
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 which is provided to multiple subscribers within a community, but such term does not include:
A. 
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
B. 
A facility that serves subscribers without using any public right-of-way;
C. 
A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system [other than for purposes of Section 621(c)] to the extent such facility is used in the transmission of video programming directly to systems.
FCC
Federal Communications Commission.
GRANTEE
Robinson/Plum Cablevision, L.P., d/b/a Adelphia Cable Communications and its successors, transferees or assigns.
GROSS REVENUES
All revenues derived from the operation of the cable system arising or attributable to the sale or exchange of cable service in the Township of Allegheny.
OWNER
A person with a legal or equitable interest in ownership of real property.
PERSON
Any corporation, partnership, proprietorship, individual or organization, governmental organization or any natural person.
PUBLIC PROPERTY
Any real property owned by the Township, other than a street.
STREET
The surface of and the space above and below any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or any easement or right-of-way, alley, court, sidewalk, boulevard, parkway, drive or any easement or right-of-way now or hereafter held by the Township or dedicated to the Township, or to general public use.
SUBSCRIBER
Any person or entity who subscribes to cable television service provided by grantee by means of the system.
TOWNSHIP
Township of Allegheny, County of Westmoreland, Pennsylvania.

§ A253-4 Grant of authority.

A. 
Grant of franchise. For the purpose of providing cable service and other communications and information services, grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, across and along the streets and public property, such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appropriate to cable and information services. Grantee is also authorized to utilize public rights-of-way and to utilize easements within the Township which have been dedicated for compatible uses, as provided for in Section 621(a)(2) of the Cable Communications Policy Act.
B. 
Franchise term. The initial term of this franchise shall commence on August 13, 2001, and shall expire 15 years from the said date, unless renewed as herein provided.

§ A253-5 Design and services provisions.

A. 
Technical requirements. Grantee shall construct and maintain a system that meets at least the technical standards applied by the FCC. Procedures for testing technical capacity of the system shall conform with the technical and testing standards applied to cable systems by the FCC.
B. 
Interference with reception outside cable system. Grantee's installation shall be installed, maintained and operated in a manner which shall not interfere with television or radio reception by means other than by cable-type systems.
C. 
System map. Adelphia shall file with the Township a map showing the location of lines and facilities and shall provide supplements showing extension of such lines and facilities annually, if requested by the Township. The map will be provided to the Township when it becomes available.

§ A253-6 Construction provisions.

A. 
Construction requirements. Grantee shall make use of existing poles and other facilities available to grantee. Grantee may also erect its own poles and install its own conduit. All poles and conduit installed within the Township shall be made available for attachment or use by grantee at just and reasonable rates applied to public utilities under the formula presently established in 47 U.S.C. § 224.
B. 
Construction codes and permits. Grantee shall obtain any required permits from the Township before commencing construction involving the opening or disturbance of any street or public property. Grantee shall comply with all applicable building and zoning codes. Grantee shall arrange its lines, cables and other appurtenances on any street or public property in such a manner as to cause no unreasonable interference with the usual and customary use of said street or public property by a person.
C. 
Repair of streets and public property. Any and all streets or public property which are disturbed or damaged during the construction, operation or maintenance of the system shall be promptly repaired by grantee at its expense and to the condition prior to the disturbance or damage.
D. 
Movement of facilities. In the event it is necessary temporarily to move or remove any of grantee's wires, cables, poles or other facilities placed pursuant to this franchise, in order to lawfully move a large object, vehicle, building or other structure over the streets of the Township, upon two weeks notice by the Township to grantee, grantee shall move, at the expense of the person requesting the temporary removal, such of his/her franchise as may be required to facilitate such movements.
E. 
Prudent installation and operation. Grantee agrees that its installation and operation shall be installed, located and maintained so as not to endanger or interfere with the life and property of any person or thing; nor interfere with improvements which the Township may deem proper; nor hinder or obstruct the free use of streets, alleys, bridges or other public or private property. In the event the Township relocates a street or makes any other change requiring the removal of utility installations or, in the event grantee does interfere with the public or private property of others, grantee, at its sole expense, will remove its installation at this location. In the event that a utility is reimbursed by the Township for the placement of cable underground or the movement of cable, grantee shall be reimbursed on the same terms and conditions.
F. 
Service area. In new housing districts, areas with occupancy densities of more than 20 homes per linear aerial mile and 25 homes per linear underground mile which are contiguous to the system will be provided with access to service within six months after the necessary approvals for pole attachments or private rights-of-way are obtained, to the extent service is economically feasible and technically possible. In areas with fewer than 20 homes per linear aerial mile and 25 homes per linear underground mile, service shall be offered to the extent the person(s) requesting such service pay the costs of such service extension. The costs of all installations requiring drops in excess of 125 feet from the existing cable system shall be borne by the customer.

§ A253-7 Operation and maintenance.

A. 
Maintenance and complaints.
(1) 
Grantee shall render efficient service, make repairs promptly and interrupt service only for good cause.
(2) 
Any complaints from subscribers shall be investigated and acted upon as soon as possible.
B. 
Safety.
(1) 
Grantee shall at all times take reasonable precautions for preventing failures and accidents which are likely to cause damage or injury to the public, to employees of grantee and to public or private property.
(2) 
All lines, equipment and facilities within the Township shall at all times be kept and maintained in a safe and suitable condition and in good order and repair.
C. 
Subscriber practices.
(1) 
Grantee shall not deny service, deny access or otherwise discriminate against subscribers on the basis of race, color, religion, natural origin, sex or age. Grantee shall adhere to the equal employment opportunity requirements of the FCC.
(2) 
Grantee may conduct promotional campaigns in which standard rates are uniformly discounted or waived.
(3) 
Grantee may make special contracts for nonprofit, charitable, educational, governmental and religious organizations.
(4) 
Grantee may offer bulk rate discounts for multiple dwellings, hotels, motels and similar institutions.

§ A253-8 Franchise fee.

A. 
Grantee shall pay annually to the Township 5% of gross revenues as a franchise fee. This franchise fee for the preceding year shall be paid on or before January 31 of each year. The foregoing payment shall be compensation for use of streets and other public property.
B. 
Upon 30 days' written notice, the Township shall have the right, during normal business hours at Adelphia's local office, to inspect the books of Adelphia relative to customers' services and fees received to the extent necessary to verify compliance with this ordinance, provided, however, that the Township shall not make public disclosure of any information gained as a result of such inspection without prior written consent of Adelphia.

§ A253-9 Remedies; defenses; insurance.

A. 
Laws governing. This franchise shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania and applicable federal laws.
B. 
Notice of violation. The Township shall provide the grantee with a detailed written notice of any franchise violation upon which it proposes to take action and a thirty-day period within which grantee may cure an alleged violation. This thirty-day period shall not begin to run in the event the alleged violation is beyond the grantee's control or the grantee is diligently pursuing corrective action. Grantee may, within 15 days of receiving such notice, notify the Township that there is a dispute as to whether a violation has, in fact, occurred. Such notice by grantee to the Township shall detail the matters disputed by the grantee. The Township shall hear grantee's dispute at the next regularly scheduled meeting of the Township Board of Supervisors. In the event the dispute proceeds through litigation, the losing party shall be responsible for all attorney fees, including all attorney fees incurred by the prevailing party.
C. 
Indemnity.
(1) 
Grantee shall indemnify and hold harmless the Township at all times during the term of this franchise from and against all claims, including reasonable attorneys' fees and legal costs, for injury or damage to persons or property, both real and personal, caused by the construction, erection and maintenance of the system.
(2) 
It is expressly understood that the Township has no control, standard or regulation pertaining to the subject matter of programs distributed by grantee. Grantee agrees to indemnify and save harmless the Township, its officers and employees from all claims, suits and actions at law or equity for libel, slander, patent or copyright infringements, that in the event the Township is made party to defendant in any action arising out of the subject matter of programs transmitted by grantee. Grantee shall, at its sole cost and expense, defend such action and appeals therefrom, including those involving the Township.
D. 
Liability insurance.
(1) 
Throughout the term of this franchise, grantee shall maintain a policy of liability insurance covering the grantee and naming the Township as an additional insured in the minimum amounts of:
(a) 
For property damage in any one occurrence: $1,000,000;
(b) 
For bodily injury to any one person: $1,000,000; and
(c) 
For bodily injury in any one occurrence: $1,000,000.
(2) 
Grantee shall furnish to the Township a certificate of insurance for the required amounts.
E. 
Other remedies.
(1) 
From and after the effective date of this franchise, it shall be unlawful for any person to establish, operate or to carry on the business of distributing to any persons in the cable service territory any television signals or radio signals by means of a system unless a franchise therefore has first been obtained pursuant to the provisions of this ordinance and unless such franchise is in full force and effect.
(2) 
No person shall interrupt or receive signals from the system unless specifically authorized to do so by the grantee.
(3) 
No person shall tamper with, remove or injure any cable, wires or equipment used with the system unless specifically authorized to do so by the grantee.
(4) 
No person shall intentionally deprive the grantee of a lawful charge for cable service.
(5) 
No person shall resell grantee's cable services without grantee's express, written consent.
(6) 
The Township and grantee are expressly reserving their applicable rights and remedies available in law or in equity.
F. 
Conditions of access. In addition to the provisions of § A253-4A, no party who owns or controls any residential multiple dwelling unit, trailer park, condominium or apartment complex or subdivision shall interfere with the right of any tenant or lawful resident thereof to receive service from grantee.

§ A253-10 Variance and renewal.

Applications for a variance to this franchise to accommodate a significant change in circumstance, to prevent unreasonable hardship to grantee or to permit technical variations which will satisfy the purpose of this franchise may be made by the grantee to the Township. The Township shall review the application within 14 calendar days or the earliest meeting of the Township Board of Supervisors and shall issue a report of the findings of the Township and shall act on a request within 45 days.

§ A253-11 Miscellaneous provisions.

A. 
Severability. If any law, ordinance, regulation or court decision shall render any provision of this franchise invalid, the remaining provisions of the franchise shall remain in full force and effect.
B. 
Free installations. Grantee shall provide free main installations, where its existing cable system passes, for all schools, police stations, municipal buildings and fire halls within the service area, making no charge whatsoever, either for main installation or monthly rentals. In the event more than one connection is required at any of the aforesaid buildings, then, and in that event, grantee shall make such additional installations at cost.
C. 
Assignability. Grantee shall have the right to assign its rights and privileges hereunder, subject to the terms and conditions herein imposed, such assignment to become effective only upon the Assignee's filing with the Township a written acceptance of the rights and subject to the terms and conditions herein imposed and subject to the approval of the Township, whose approval shall be limited to an examination of the legal, technical and financial qualifications of the assignee and such approval shall not be unreasonably withheld. For purposes of this Subsection C, grantee shall have the right to freely assign its rights and privileges hereunder to any company owned, managed or controlled by Adelphia Communications Corporation, any of its subsidiaries, John J. Rigas or any member of his immediate family or to transfer the assets or stock of the company to a financial institution as security for refinancing purposes.
D. 
Regulations. Allegheny Township reserves the right to adopt such additional regulation as it deems necessary in the exercise of its police power, provided that such regulation shall be reasonable and not in conflict with the rights granted by ordinance or in this contract.
E. 
Force-majeure. Prevention or delay of any performance under this franchise due to circumstances beyond the control of grantee or the Township, unforeseen circumstances or acts of God shall not be deemed noncompliance with or a violation of this franchise.
F. 
More favorable terms. In the event that Allegheny Township approves or permits a system to operate in the cable service area of Adelphia in a direct competition environment, such as the telephone company or an overbuild situation, on terms more favorable than those contained in this franchise, such more favorable terms shall be applicable in this franchise. This provision is not intended to apply to other providers operating in different areas of the Township. This provision only applies to companies competing in the same service territory in overbuild situations or telephone company competitions.
G. 
Regulatory bodies. Grantee shall conduct the operation of its business in accordance with the rules, regulations and statutes, as amended from time to time, of the Federal Communications Commission and any other duly authorized federal, state or local authority having jurisdiction. In particular, the grantee shall, at all times, comply with the rules and regulations governing cable television operations promulgated by the FCC, specifically those set out in the Cable Communications Policy Act of 1984, as amended, and of the FCC rules and regulations and any FCC rules and regulations regarding technical and engineering specifications involved in the construction of the CATV system and signal carriage thereon.
H. 
Modification of FCC rules. Consistent with the requirements of the Cable Communications Policy Act of 1984 and of the FCC rule, any modification of the Cable Communications Policy Act of 1984 resulting from amendment thereto by the FCC shall be, to the extent applicable, considered as a part of this franchise, as of the effective date of the amendment, made by the Cable Communications Policy Act of 1984 and the FCC. It is the intention of Allegheny Township that, to the extent any provision in this ordinance is superseded or preempted by any applicable state or federal law, that the latter shall prevail.
I. 
Repealer. All ordinances or parts of ordinance which are inconsistent herewith are hereby repealed.
J. 
This ordinance shall be effective five days after its adoption.
[Adopted 2-11-2002]

§ A253-12 Definitions.

For the purpose of this franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.
BASIC CABLE
The lowest priced tier of service that includes the retransmission of local broadcast television signals.
CABLE ACT
The Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996.
A. 
The one-way transmission to customers of (i) video programming, or (ii) other programming service; and
B. 
Customer interaction, if any, which is required for the selection or use of such video programming or other programming service.
CABLE SYSTEM
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 which is provided to multiple customers within a community, but such term does not include:
A. 
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
B. 
A facility that serves customers without using any public way;
C. 
A facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Cable Act, except that such facility shall be considered a cable system [other than for purposes of Section 621(c)] to the extent such facility is used in transmission of video programming directly to customers unless the extent of such use is solely to provide interactive on-demand services;
D. 
An open video system that complies with Section 653 of title VI of the Cable Act; or
E. 
Any facilities of any electric utility used solely for operating its electric utility system.
CUSTOMER
A person who lawfully receives services of the cable system with the grantee's express permission.
FCC
Federal Communications Commission, or successor governmental entity thereto.
FRANCHISE
The initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the cable system.
GRANTEE
TCI of Pennsylvania, Inc., or the lawful successor, transferee, or assignee thereof.
GROSS REVENUES
Any revenue received by the grantee from the grantee's use of the cable system to provide cable services in the service area, provided, however, that such phrase shall not include: (i) any tax, fee, or assessment of any kind imposed by the LFA or other governmental entity on a cable operator, or customer, or both, solely because of their status as such; (ii) any tax, fee or assessment of general applicability which is unduly discriminatory against cable operators or customers (including any such tax, fee, or assessment imposed, both on utilities and cable operators and their services); and (iii) any other special tax, assessment, or fee such as a business, occupation, and entertainment tax. In addition, gross revenues shall not include bad debts to the extent revenue is calculated on an accrual basis. Exhibit A enumerates specific revenues.[1]
LOCAL FRANCHISING AUTHORITY
The Township of Allegheny.
PERSON
An individual, partnership, association, joint stock company, trust, corporation, or governmental entity.
A. 
The surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the LFA in the service area which shall entitle the LFA and the grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the cable system.
B. 
Any easement now or hereafter held by the LFA within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the LFA and the grantee to the use thereof for the purposes of installing and operating the grantee's cable system over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the cable system.
SERVICE AREA
The present municipal boundaries of the LFA, and may include any additions thereto by annexation or other legal means.
[1]
Editor's Note: Exhibit A is on file in the Township offices.

§ A253-13 Grant of franchise.

A. 
Grant. The LFA hereby grants to the grantee a nonexclusive franchise which authorizes the grantee to construct and operate a cable system in, along, among, upon, across, above, over, under, or in any manner connected with public ways within the service area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any public way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system. Nothing in this franchise shall be construed to prohibit the grantee from offering any service over its cable system that is not prohibited by federal or state law.
B. 
Term. The franchise granted hereunder shall commence on the first day of March 2002 and conclude at 12:00 midnight on the 10th day of March 2006, unless otherwise lawfully terminated in accordance with the terms of this franchise.

§ A253-14 Standards of service.

A. 
The cable system. The cable system currently operating in the service area is capable of delivering 54 channels. The grantee recognizes that during the term of this franchise additional cable services may be desirable. The grantee, throughout the term of this franchise, may provide additional cable services as market and economic conditions warrant. Grantee's decision regarding any increase in cable services during the term of this franchise will be determined by grantee's ongoing analysis of several factors, including but not limited to, the current state of cable system technology, competition, the availability of quality programming, and the financial impact on monthly rates charged for cable services provided over the cable system.
B. 
Conditions of street occupancy. All transmission and distribution structures, poles, other lines, and equipment installed or erected by the grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of public ways and with the rights and reasonable convenience of property owners who own property that adjoins any of such public ways. Except for existing facilities, the grantee shall not place, or cause to be placed, any transmission and distribution structures, poles, other lines or other equipment above, over, under, across, through or in any way connected with the public ways of the municipality without first obtaining written approval of the LFA.
C. 
Restoration of public ways. If during the course of the grantee's construction, operation, or maintenance of the cable system there occurs a disturbance of any public way by the grantee, it shall, at its expense, replace and restore such public way to a condition substantially comparable to the condition of the public way existing immediately prior to such disturbance. Grantee hereby covenants and agrees to minimize any such disturbances through the exercise of due care, skill and expertise by the grantee and its representatives.
D. 
Relocation at request of the LFA. Upon its receipt of reasonable advance notice, not to be less than five business days, the grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the public way, or remove from the public way, any property of the grantee when lawfully required by the LFA by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the LFA; but, the grantee shall have the option to abandon underground installations that do not pose any safety hazard, do not deface the environment and do not interfere with plans of the LFA or property owners. If public funds are available to any person using such street, easement, or right of way for the purpose of defraying the cost of any of the foregoing, the LFA shall assist the grantee in making application for such funds on behalf of the grantee.
E. 
Relocation at request of third party. The grantee shall, on the request of any person holding a requisite lawful issued by the LFA, temporarily raise or lower its wires to the moving of any equipment, building, material or otherwise, provided:
(1) 
The expense of such temporary raising or lowering of wires is paid by said person, including, if required by the grantee, making such payment in advance; and
(2) 
The grantee is given not less than 10 business days' advance written notice to arrange for such temporary wire changes.
F. 
Trimming of trees and shrubbery. The grantee shall have the authority to trim trees or other natural growth overhanging any of its cable system in the service area so as to prevent branches from coming in contact with the grantee's wires, cables, or other equipment. The grantee shall reasonably compensate the LFA for any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the cable system undertaken by the grantee. Such replacement shall satisfy any and all obligations the grantee may have to the LFA pursuant to the terms of this section. All trimming and pruning shall be at the expense of the grantee and all trimming or pruning provided for herein shall be done under the supervision and direction of the LFA and its appointed representatives.
G. 
Safety requirements. Construction, installation, and maintenance of the cable system shall be performed in an orderly and workmanlike manner. All such work shall be performed in accordance with applicable FCC or other federal, state, and local regulations and codes, and the National Electric Safety Code. The cable system shall not unreasonably endanger or interfere with the safety of persons or property in the service area.
H. 
Aerial and underground construction. In those areas of the service area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, the grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving the grantee's cable and other equipment without technical degradation of the cable system's signal quality. In those areas of the service area where the transmission or distribution facilities of the respective public utilities providing telephone communications, and electric services are both aerial and underground, the grantee shall have the sole discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing contained in this section shall require the grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as customer taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this section, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this franchise, the grantee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities' facilities at the time that such are placed underground. Any cost or expense associated with such relocation shall be the initial responsibility of the grantee.
(1) 
New construction projects. In cases of new, underground construction projects, the grantee shall be relieved of any obligation to extend the cable system into such development when and if the grantee has not been given adequate notice and access to open trenches. Where the grantee does extend the cable system into such new construction projects, installation from utility easements to individual homes or other structures shall be at the cost of the home/building owner or developer, unless another satisfactory arrangement is available and acceptable to all parties of interest.
(2) 
Local improvement district. If an ordinance is passed creating a local improvement district which involves placing underground certain utilities including that of the grantee which are then located overhead, the grantee shall participate in such underground project and shall remove poles, cables and wires from the surface of the streets within such district and shall place them underground in conformity with the requirements of the LFA. The grantee may include its costs of relocating facilities associated with the undergrounding project in said local improvement district if allowed under applicable law.
I. 
Required extensions of service. The cable system, as constructed as of the effective date of this franchise, is hereby approved as to extent of service area. Grantee is hereby authorized to extend the cable system as necessary, as desirable, or required pursuant to the terms hereof within the service area. Whenever the grantee shall receive a request for service from at least 15 residences or from the LFA on behalf of such residences within 1,320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its cable system to such residences at no cost to said residents for cable system extension, other than the usual connection fees for all customers; provided that such extension is technically feasible, or as provided for under Subsection J of this section.
J. 
Customer charges for extensions of service. No potential customer shall be refused service arbitrarily. However, for unusual circumstances, such as a potential customer's request to locate the cable drop underground, existence of more than 125 feet of distance from distribution cable to connection of service to such potential customers, or a density of less than 15 residences per 1,320 cable-bearing strand feet of trunk or distribution cable, grantee may establish a special fee. Service may be made available on the basis of cost of material, labor and easements, as a special fee, in order that existing customers shall not be unfairly burdened. The grantee may require advance payment of this fee or may make other arrangements with individual, potential customers.
K. 
Service to public buildings. The grantee shall, upon request, provide without an installation or monthly charge, except as provided for herein one outlet of basic service to those LFA business offices, fire station(s), police station(s), and public, private or parochial school building(s) that are passed by its cable system. The outlets of basic service shall not be used to distribute or sell services in or throughout such buildings, nor shall such outlets be located in areas open to the public. The LFA shall take reasonable precautions to prevent any use of the grantee's cable system in any manner that results in the inappropriate use thereof or any loss or damage to the cable system. Users of such outlets shall hold the grantee harmless from any and all liability or claims arising out of their use of such outlets, including but not limited to, those arising from copyright liability. The grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to said buildings or premises exceeds the FCC standard installation distance of 125 feet or unless the appropriate governmental or other entity agrees to pay the incremental cost of excess drop line and other required equipment. If additional outlets of basic service are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials.
L. 
Emergency use.
(1) 
In accordance with the provisions of FCC Regulations Part 11, subpart D, Section 11.51, and as such provisions may from time to time be amended, the grantee shall install, if it has not already done so, and maintain an emergency alert system (EAS) for use in transmitting emergency act notifications (EAN) and emergency act terminations (EAT) in local and state-wide situations as may be designated to be an emergency by the local primary (LP), the state primary (SP) and/or the State Emergency Operations Center (SEOC), as those authorities are identified and defined within FCC Reg. Section 11.18.
(2) 
The LFA shall only appropriately trained and authorized persons to operate the EAS equipment and shall indemnify and hold harmless the grantee, its employees. officers and assigns from any claims arising from use of the cable system or the EAS equipment by the LFA, its employees, authorized representatives, or designees, including, but not limited to, reasonable attorneys' fees. Additionally, the LFA shall indemnify, save and hold harmless the grantee against damage, loss or inappropriate use of the equipment and shall agree to use due care and to take reasonable precautions against such damage, loss or in appropriate use of the EAS equipment or other cable system equipment which may be used during a declared emergency.

§ A253-15 Regulation by LFA.

A. 
Franchise fee.
(1) 
The LFA hereby imposes upon the grantee an annual obligation to pay to the LFA a franchise fee. Such fee shall be calculated at 5% of gross revenues (as defined in § A253-12 of this agreement). The LFA has elected to include franchise fees collected from customers in gross revenues for the purpose of calculating franchise fee payments in accordance with federal law and FCC rules. It is understood that all franchise fees may be itemized on customer bills and such fees are recognized as being "pass throughs" to customers. Payments shall be computed and prepaid in quarterly installments and shall arrive at the LFA office within 60 days after the close of each preceding quarter. For the purposes of franchise fee reporting and any reconciliation, the applicable accounting period shall be a calendar year. To accompany each fourth quarter fee payment, the grantee shall report the payment records for the preceding year and such report shall be submitted on a prescribed form which is attached hereto as Exhibit B.[1] The franchise fee payments due as described above are made in lieu of any other LFA fees, charges or considerations and the grantee, therefore, shall not be required to make payment for such items as solicitation fees, road opening permits, or other such fees. Notwithstanding anything to the contrary, the grantee shall follow all procedures required in seeking LFA permits, licenses and other permissions.
[1]
Editor's Note: Exhibit B is on file in the Township offices.
(2) 
The period of limitation for recovery of any franchise fee payable hereunder shall be four years from the date on which the last payment by the grantee, pursuant to this franchise, is due. Unless the LFA initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, within four years from and after such payment due date, such recovery shall be barred and the LFA shall be estopped from asserting any claims whatsoever against the grantee relating to any such alleged deficiencies.
B. 
FCC customer service standards. Grantee agrees to abide by these customer service standards as so directed by the LFA. Presented here as Exhibit C are the customer service standards developed by the FCC under obligation of the Cable Act of 1992 and amendments hereto shall be recognized by the LFA and the grantee.
C. 
Rates and charges. The LFA may regulate rates for the provision of basic cable, equipment and certain other charges as expressly permitted by the rules and regulations of the FCC and under applicable law.
D. 
Renewal of franchise.
(1) 
The LFA and the grantee agree that any proceedings undertaken by the LFA that relate to the renewal of the grantee's franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law.
(2) 
In addition to the procedures set forth in said Section 626(a), the LFA agrees to notify the grantee of its assessments regarding the identity of future cable-related community needs and interests, as well as, the past performance of the grantee under the then current franchise. The LFA further agrees that such a preliminary assessments shall be provided to the grantee promptly so that the grantee has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the franchise prior to expiration of its term. Notwithstanding anything to the contrary set forth in this section, the grantee and the LFA agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, the LFA and the grantee may agree to undertake and finalize informal negotiations regarding renewal of the then current franchise and the LFA may grant a renewal thereof. The grantee and the LFA consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act.
E. 
Conditions of sale.
(1) 
If a renewal or extension of the grantee's franchise is denied or the franchise is lawfully terminated, and the LFA either lawfully acquires ownership of the cable system or by its actions lawfully effects a transfer of ownership of the cable system to another party, any such acquisition or transfer shall be at the price determined pursuant to the provisions set forth in Section 627 of the Cable Act.
(2) 
The grantee and the LFA agree that in the case of a final determination of a lawful revocation of the franchise, at the grantee's request, which shall be made in its sole discretion, the grantee shall be given a reasonable opportunity to effectuate a transfer of its cable system to a qualified third party acceptable to the LFA in accordance with applicable law. The LFA further agrees that during such a period of time, it shall authorize the grantee to continue to operate pursuant to the terms of its prior franchise; however, in no event shall such authorization exceed a period of time greater than six months from the effective date of such revocation. If, at the end of that time, the grantee is unsuccessful in procuring a qualified transferee or assignee of its cable system which is reasonably acceptable to the LFA, the grantee and the LFA may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that the grantee's continued operation of its cable system during the six-month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the LFA or the grantee.
F. 
Transfer of franchise.
(1) 
The grantee's right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling, controlled by, or under common control with the grantee, without the prior consent of the LFA, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the grantee in the franchise or cable system in order to secure indebtedness. Within 30 days of receiving the request for transfer, the LFA shall, in accordance with FCC rules and regulations, notify the grantee in writing of the information it requires to determine the legal, financial and technical qualifications of the transferee. If the LFA has not taken action on the grantee's request for transfer within 120 days after receiving such request, consent by the LFA shall be deemed given.
(2) 
In a similar manner, and in the event that the LFA would wish to consider transfer of this franchise or any change in administrative control over this franchise, the LFA shall give notice to the grantee. Any grantee request for a meeting or public hearing on this proposed action shall be honored by the LFA and such meeting or hearing shall be conducted within 30 days of grantee receipt of notice. The grantee shall then have 120 days from the original notice to seek amendments to this agreement prior to the transfer or change in administrative control, agree to the transfer or change in administrative control or reject any of the proposed actions.

§ A253-16 Compliance and monitoring.

A. 
Books and records. The grantee agrees that the LFA upon reasonable notice to the grantee may review such of its books and records at the grantee's business office, during normal business hours and on a nondisruptive basis, as is reasonably necessary to ensure compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the grantee pursuant to the rules and regulations of the FCC. The LFA agrees to treat any information disclosed by the grantee as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof. The grantee shall not be required to provide customer information in violation of Section 631 of the Cable Act.

§ A253-17 Insurance and indemnification.

A. 
Insurance requirements. The grantee shall maintain in full force and effect, at its own cost and expense, during the term of the franchise, commercial general liability insurance in the amount of $1,000,000 combined single limit for bodily injury, and property damage. The grantee shall provide a certificate of insurance designating the LFA as an additional insured. Such insurance shall be noncancellable except upon 30 days' prior written notice to the LFA.
B. 
Indemnification. The grantee agrees to indemnify, save and hold harmless, and defend the LFA, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of the grantee's construction, operation, or maintenance of its cable system, including, but not limited to, reasonable attorneys' fees and costs, provided that the LFA shall give the grantee written notice of its obligation to indemnify the LFA within 15 working days of receipt of a claim or action pursuant to this section. If the LFA determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the LFA.
C. 
Bonds. The grantee shall file with the Municipal Manager, and shall maintain in full force and effect, during the term hereof, a corporate surety bond or other adequate surety agreement in the amount of $20,000. The bond or agreement shall be conditioned that in the event that grantee shall fail to pay the franchise fee due the municipality under the terms of § A253-15A, then there shall be recoverable jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the municipality as a result thereof, including attorney's fees and costs of any action or proceeding, and including the full amount of any compensation or indemnification up to the full principal amount of such bond. Said condition shall be a continuing obligation during the entire term of this franchise.

§ A253-18 Enforcement and termination of franchise.

A. 
Notice of violation. In the event that the LFA believes that the grantee has not complied with the terms of the franchise, it shall notify the grantee in writing of the exact nature of the alleged noncompliance. The grantee shall not be relieved of any of its obligations to comply promptly with any provision of the franchise by reason of any failure of the LFA to enforce prompt compliance.
B. 
The grantee's right to cure or respond. The grantee shall have 30 days from receipt of the notice described in Subsection A:
(1) 
To respond to the LFA, contesting the assertion of noncompliance; or
(2) 
To cure such default; or
(3) 
In the event that, by the nature of default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the LFA of the steps being taken and the projected date that they will be completed, provided however that such projected date shall not extend beyond a total of 90 days following receipt of notice pursuant to Subsection A.
C. 
Public hearing. In the event that the grantee fails to respond to the notice described in Subsection A pursuant to the procedures set forth in Subsection B, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to Subsection B(3) above, the LFA shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the LFA which is scheduled at a time which is no less than five business days from the close of the 30 days or the projected date noted above. The LFA shall notify the grantee in writing of the time and place of such meeting and provide the grantee with an opportunity to be heard.
D. 
Enforcement. Subject to applicable federal and state law, in the event the LFA, after such meeting, determines that the grantee is in default of any provision of the franchise, the LFA may:
(1) 
Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;
(2) 
Commence an action at law for monetary damages or seek other equitable relief; or
(3) 
In the case of a substantial default of a material provision of the franchise, declare the franchise agreement to be revoked in accordance with the following:
(a) 
The LFA shall give written notice to the grantee of its intent to revoke the franchise on the basis of a pattern of noncompliance by the grantee, including one or more instances of substantial noncompliance with a material provision of the franchise. The notice shall set forth the exact nature of the noncompliance. The grantee shall have 90 days from such notice to object in writing and to state its reasons for such objection. In the event the LFA has not received a response satisfactory from the grantee, it may then seek termination of the franchise at a public meeting. The LFA shall cause to be served upon the grantee, at least 10 days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination.
(b) 
At the designated meeting, the LFA shall give the grantee an opportunity to state its position on the matter, after which it shall determine whether or not the franchise shall be revoked. The grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the LFA "de novo" and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within 60 days of the issuance of the determination of the LFA.

§ A253-19 Miscellaneous provisions.

A. 
Actions of parties. In any action by the LFA or the grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.
B. 
Actions of amendment. The LFA and the grantee recognize that a change in circumstances may lead to consideration of amendments to this franchise. Either party may present a proposed amendment to the other and consideration of any proposed amendment shall occur within six months of presentations. This franchise and any enabling legislation may only be amended through mutual consent.
C. 
Force majeure. The grantee shall not be held in default under, or in noncompliance with, the provisions of the franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the grantee's ability to anticipate and control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the grantee's cable and/or equipment is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary.
D. 
Equal protection. In the event the LFA enters into a franchise, , license, authorization, or other agreement of any kind with any other person or entity other than the grantee to enter into the LFA's public ways for the purpose of constructing or operating a cable system or providing cable service to any part of the service area, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be granted an unfair competitive advantage over another.
E. 
Notice.
(1) 
Unless expressly otherwise agreed between the parties, every notice or response required by this franchise to be served upon the LFA or the grantee shall be in writing, and shall be deemed to have been duly given to the required party five business days after having been posted in a properly sealed and correctly addressed envelope when hand delivered or sent by certified or registered mail, postage prepaid.
(2) 
The notices or responses to the LFA shall be addressed as follows:
Township of Allegheny
Township Board of Supervisors
136 Community Building Road
Leechburg, PA 15656
(3) 
The notices or responses to the grantee shall be addressed as follows:
TCI of Pennsylvania, Inc.
Attention: General Manager
300 Corliss Street
Pittsburgh, PA 15220
(4) 
The LFA and the grantee may designate such other address or addresses from time to time by giving notice to the other.
F. 
Descriptive headings. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.
G. 
Applicable laws and ordinances. The municipality reserves the right to adopt from time to time in addition to the provisions herein contained, such ordinances as may be necessary in the exercise of police power. Such regulation shall be reasonable and not in derogation of the rights herein granted, nor in conflict with the laws of the state or other local or federal laws or regulations.
H. 
Documents incorporated. The following documents shall be incorporated herein:[1]
Exhibit A: Cable Service Revenue Categories
Exhibit B: Annual Franchise Fee Reporting Form
Exhibit C: FCC Customer Service Standards
[1]
Editor's Note: Exhibits A, B and C are on file in the Township offices.
I. 
Severability. If any section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the franchise, or any renewal or renewals thereof.