[HISTORY: Adopted by the Board of Supervisors
of the Township of Conewago as indicated in article histories. Amendments
noted where applicable.]
This ordinance shall be known and may be cited
as the "Cable Television Franchise Ordinance."
For the purpose of this ordinance, the following
terms, phrases, words and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in
the present tense shall include the future, words in the plural number
shall include the singular, and words in the singular number shall
include the plural. "May" will be interpreted as permissive, and "shall"
will be interpreted as mandatory.
The Supervisors of the Township.
The Cable Communications Policy Act of 1984 as amended by
the Cable Television Consumer Protection and Competition Act of 1992,
and as it may be further amended by the Telecommunications Competition
and Deregulation Act of 1996.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and other services, including internet access, and voice and data
transmissions and which is provided to multiple subscribers within
a community, excluding however, those facilities excluded from such
definition of cable system in the Cable Act.
York Cable Television, Inc., a corporation, and grantee of
rights under this franchise, or its assignee or successor.
The nonexclusive right, privilege and authority granted by
this ordinance to construct, maintain and operate a cable television
system in Township, and shall permit, in addition to the privilege
to operate within the Township, the company to construct, maintain
and operate a cable television system with whatever wires or components
are necessary over, under or within all the Township rights-of-way
and the streets situate therein located in the Township.
The Commonwealth of Pennsylvania.
The surface of, as well as the space above and below, all
streets, roadways, highways, freeways, avenues, lanes, alleys, courts,
places, squares, curbs, sidewalks, easements rights-of-way or other
public ways in the Township which have been or may hereafter be dedicated
and opened to public use or such other public property so designated
by law which shall, within their proper use and meaning, entitle the
Township and company to access thereon for the purpose of installing
or transmitting cable transmissions over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, broadcasters,
receivers, attachments and any other property as may be necessary
and pertinent to operation of the business within the Township.
Any person, firm, company, corporation or association paying
for Basic Service from the Company.
The Township of Conewago.
A.
Effective May 5, 2002, the company is hereby granted
by the Township the right, privilege and franchise to construct, direct,
operate, modify and maintain, for a period of 15 years, a cable television
system for the distribution of audio, video, digital and other forms
of electronic signals within, upon, along, across, over and under
the Township streets and anywhere where such conduct may be done lawfully
within the boundaries of Township.
B.
The Company shall provide service in accordance with
the following guidelines:
(1)
In areas where aerial construction is permitted, the
Company shall construct all sections which are contiguous to the existing
system and which shall have at least 30 homes per mile, but densely
populated areas shall be addressed so that population centers are
served. In areas where underground construction is required, the Company
shall construct all sections which are contiguous to the existing
system and have at least 40 homes per mile. In the event that a given
extension would be less than one mile, the Company shall construct
the extension if the number of homes passed in the proposed extension
is in the same proportion in relation to the length of said extension
as the standard set forth above for a one-mile extension (and for
the same type of construction)
(2)
In all areas where the company has constructed its
cable television system, the company shall provide service at the
normal installation costs (being those costs as normally published
and charged) to a potential subscriber whose home can be reached by
an aerial drop line of 150 feet or less. "Aerial drop line" shall
mean a line that runs above ground from the cable feeder lines on
the poles to the individual subscriber's residence.
(3)
Notwithstanding anything to the contrary, the company shall have the right to deny service if the above-mentioned conditions are not met unless the subscriber or subscribers in question agree to reimburse the company for any extraordinary costs. In the case of Subsection B(1), above, "extraordinary costs" shall be costs in excess of the amount required to build one cable subscriber connection assuming aerial construction density of 30 homes per mile and the then-current construction costs and penetration levels. In the case of Subsection B(2), "extraordinary costs" shall be costs in excess of the amount required to provide one aerial cable drop of 150 feet at the then-current cost.
(4)
The company shall not take any action or enter into
any agreement with any third party which will have the effect of creating
a de facto exclusive franchise agreement for the provision of a cable
television system.
This franchise may be renewed for additional
terms of 10 years upon the expiration of the initial term or any renewal
term if the company substantially complies with the requirement of
this franchise. Renewal proceedings shall be in accordance with the
Cable Act, as it may be amended or supplemented.
A.
The poles and posts used for the company's cable television
system lines shall be those erected by the company or by such other
persons, firms or corporations maintaining poles or posts within the
Township limits, providing mutually satisfactory rental agreements
can be entered into with such persons, firms or corporations.
B.
The distribution facilities of the company shall be
at all times maintained in a good and safe way and condition and shall
be constructed and maintained so as not to interfere with television
reception by inhabitants of the Township not using the company's services.
C.
In the maintenance and operation of its cable television
transmission and distribution system in the Township and in the course
of construction or addition to its facilities, the company shall proceed
so as to cause the least possible inconvenience to the general public,
and any opening or obstruction in the streets or other public places
made by the company in the course of its operations shall be guarded
and protected at all times by the placement of adequate barriers,
fencings or boardings, the bounds of which during the periods of dusk
and darkness shall be designated by warning lights of approved types.
D.
Whenever the company shall take up or disturb any
pavement, sidewalk or other improvement of any street, avenue, alley,
highway or other public place, the same shall be replaced and the
surface restored in as good condition as before entry as soon as practicable
without unnecessary delay.
E.
The location of any poles, anchors, wires, cables,
conduit, vaults, laterals and other fixtures, or the erection, laying
or removal of same, shall not interfere unreasonably with ordinary
travel and/or the use of the streets, alleys, bridges, public ways
or electrical installations of the Township.
A.
Insurance. The company shall carry insurance in such
form as shall protect the Township and company from and against any
and all claims for injury or damages to persons or property, both
real and personal, caused by the construction, erection, operation
or maintenance of any structure, equipment, appliance or products
authorized or used pursuant to the authority or any activity of the
company within this Township arising from or growing out of their
operation pursuant to the authority granted in this franchise. The
amount of such insurance against liability due to damage to property
shall be not less than $500,000 as to any one person and $1,000,000
as to any one accident. The amount of such insurance against liability
due to injury or death to persons shall be $1,000,000 as to any one
person and $2,500,000 as to any one accident. It is agreed that these
amounts may be required to be increased by the Township from time
to time to adjust for inflation, increases in potential liability
exposure, and the increased cost of property repair and replacement
and medical costs arising from injury. Insurance coverage shall not
be increased to unreasonable levels as compared to coverages required
of comparable providers in comparable communities and only upon 60
days' advance notice by the Township to the company for a need to
increase coverage. Proof of said coverage shall be delivered to the
Township immediately and annually thereafter and at such other times
as requested by the Township.
B.
Indemnification of the Township. The company shall
indemnify and hold the Township harmless at all times during the term
of this franchise and thereafter from and against any and all claims,
demands, actions, disputes or suits for injury, losses and damages
of any kind whatsoever arising from or caused by the construction,
erection, operation and maintenance of any structure, facility, equipment,
appliance, system or products authorized or used pursuant to the authority
of this franchise, or the cable system, or the existence of this franchise.
Further, the company, upon receipt of due notice in writing from the
Township within five days of receipt of a claim or legal complaint,
shall defend, at its own expense, any action or proceeding against
the Township, in which it is claimed that personal injury or property
damage arose from any activity, within the Township for which the
company agreed to indemnify the Township.
A.
Relocation.
(1)
The company shall, upon reasonable notice without
expense to the Township, temporarily relocate its facilities to accommodate
such public works or improvements as the Township shall in its judgment
designate.
(2)
The company shall, at the expense of any person other
than the Township requesting said adjustment, temporarily raise, lower
or remove its wires to permit the improvement of property. In such
event, the company shall be given not less than 14 days' advance written
notice to arrange for the temporary wire changes.
B.
Overhead and underground construction. The company shall be permitted to place its cables, wires or other equipment overhead when local or state law permits overhead construction or when other like facilities are overhead. The company shall place its cables, wires or other equipment underground where local or state law requires underground placement and where all other like facilities are underground. Overhead and underground construction shall be governed by § A159-3 of this franchise ordinance.
C.
Clear accessways. The company may trim trees or other
vegetation within the right-of-way of the Township to prevent their
branches or leaves from touching or otherwise interfering with its
wires, cables or other structures. The company shall obtain the permission
of the owner of any private land, tree or other vegetation before
it trims or prunes the same, unless otherwise provided by the right-of-way
agreement. No such trimming or cutting of trees or vegetation shall
occur in a manner which violates any right of the land owner or which
violates the provisions of Pennsylvania's Second Class Township Code
under which this Township operates.
The company shall have the right to prescribe
service rules and regulations for the conduct of its business not
inconsistent with the provisions of this ordinance or any ordinances
of the Township.
A.
The company shall provide within the Township a cable
television system, which cable will be capable of carrying video and
audio programming, data services, internet access and other forms
of electronic or electric signals. The programming on said channels
may include television programming available off the air and programming
imported from distant markets and received from cable satellite networks.
The company shall have the right to determine the programming and
the time, place and manner in which such programming will be provided
to subscribers.
B.
The company shall maintain its service in accordance
with accepted standards of the industry, so as to provide its subscribers
with a high level of quality and reliability.
C.
Whenever it shall be necessary to shut off or interrupt
service for the purpose of making repairs, adjustments or installations,
the company shall do so at such time as it will cause the least amount
of inconvenience to its subscribers, and unless such interruption
is unforeseen and immediately necessary, it shall give reasonable
notice thereof to its subscribers.
D.
The company shall maintain a business office within
the Adams service area which shall be open during usual business hours.
A.
No transfer of control of a franchise shall take place,
whether by forced or voluntary sale, lease, mortgage, assignment,
encumbrance, transfer of stock or any other form of disposition, without
prior approval of the Township which shall not be unreasonably withheld.
Nothing contained herein shall be deemed to prohibit the assignment
of the franchise or mortgage of the company's property for financing
purposes subject to the rights of the Township under this ordinance.
B.
The company may, with prior approval of the Township,
assign this franchise to a subsidiary, affiliate or successor corporation
of the company. Such approval shall not unreasonably be withheld.
No transfer of control to any other entity shall occur which will
denigrate the service promised hereunder or result in a transfer to
an entity without the resources to meet all standards of performance
required under the provisions of this agreement.
Rate change and rate schedule.
A.
The company shall provide information as to its initial
monthly rates, installation charges, and all other charges, including
but not limited to equipment fees, late fees, and other administrative
charges, if any.
B.
The company shall give subscribers at least 30 days'
notice of its intention to change monthly rates, equipment charges,
and installation charges by mailing notices thereof to each of the
current subscribers to whom such charges will apply. The company shall
give the Township Manager or his/her designee 30 days' advance notice
of any rate change.
The company shall have the unrestricted right
and availability to utilize the cable television system for telecommunication
purposes other than cable television service, including but not limited
to telephones, internet access, point-to-point data and voice and
message transmission, so long as said uses do not unduly interfere
with the cable television service being provided to subscribers.
Upon written request by the Township, the company
shall provide a standard cable television service hookup of basic
service via drop line from trunk or feeder line cable to each municipal
building, firehouse and public school located within the Township
at no charge where company's trunk lines currently pass or in the
future pass said municipal building, firehouse and public schools.
The cable television system within the Township
shall at all times be constructed and operated in conformance with
the technical standards, rules and regulations governing cable television
service promulgated by the Federal Communications Commission.
A.
The Township may terminate this franchise at any time
prior to its expiration date upon any material breach of any material
term or condition of this ordinance. The Township shall notify the
company in writing of its intent to terminate and the reason for its
revocation. The company shall be afforded 60 days during which to
adequately explain what has caused the alleged material breach or
other grounds for termination. If it is determined that such breach
was inadvertent, the company shall be afforded 60 days during which
to cure the alleged breach or to take affirmative action to commence
or cure said breach. If the company fails to cure or take affirmative
action toward curing the breach within such sixty-day period or in
the event it appears that such breach was not inadvertent or the reason
is other than for an immaterial breach, then the Township shall schedule
a public hearing on its intent to revoke the franchise. The company
shall be afforded the due process rights of notice, representation,
and the right to be heard at such public hearing. After such public
hearing, the Township shall have the right to revoke the franchise
for just cause if said cause is established, or to impose a lesser
penalty if so desired.
B.
In the event that revocation is imposed upon the company,
the company shall have the right to sell, transfer and convey the
cable television system and its business operation within the Township
to a qualified purchaser at fair market value so long as the same
is diligently pursued. The company shall be obligated to continue
its operation of the cable television system and operation within
the Township until such sale.
The company shall not be liable or responsible
for any delay or failure of performance of its franchise if prevented
from doing so by the resulting acts of God, flood, storms, fires,
explosions, strikes, lockouts, riots, wars, whether or not declared,
insurrections, epidemics or any law, rule or acts of any court or
instrumentality either federal, state or municipal government or any
causes beyond its control, provided that the same is not willfully
done or brought about for the purpose of excusing failure or omissions
to perform under the franchise and providing that, using reasonable
care, the same could not have been avoided by the company. In the
event the company is rendered unable to perform in whole or in part,
the company shall begin to perform its franchise as soon as is practical
after such conditions cease to exist.
On and as of May 5, 2002, all agreements or
parts of agreements conflicting with the provisions of this ordinance
shall be and the same are hereby repealed.
If any section, sentence, clause or phrase of
this ordinance is held unconstitutional or otherwise invalid or preempted
by state or federal statutes or regulations, said section, sentence,
clause or phrase shall be null and void. The remaining portion of
the ordinance shall remain valid and binding upon the Township and
the company.
The company shall at all times during the term
of this franchise be subject to all lawful exercise of the police
power of the Township. The right is hereby reserved to the Township
to adopt, in addition to the provisions herein contained and any other
existing applicable ordinances or resolutions, such additional ordinances
or resolutions as it shall find necessary in the exercise of its police
power, provided that such ordinances or resolutions shall be reasonable
and not in conflict with the rights herein granted, the laws of the
Commonwealth of Pennsylvania, the laws of the United States of America,
or the rules of the Federal Communications Commission.
The failure of any party at any time to require
performance by any other of any provision of this ordinance shall
not affect such party's right thereafter to enforce the same, and
no waiver by any party of any default by any other shall be valid
unless in writing and acknowledged by an authorized representative
of the nondefaulting party, and no such waiver shall be taken or held
to be a waiver by such party of any other proceeding or subsequent
default.
The company shall pay the costs of publication
of the ordinance as such publication is required by law. A bill for
publication shall be submitted to the company by the Township.
This ordinance shall constitute a contract between
the Township and the company upon execution of this ordinance and
the company's written acceptance of the terms of the ordinance.
The company and Township, intending to be legally
bound hereby, do, by the signature of their duly authorized officers,
hereby accept and agree to abide by the terms of this ordinance as
a contracted obligation.
