This chapter shall be known as the "East Caln
Township Community Antenna Television Ordinance."
When used in this chapter, unless the context
otherwise requires, the following terms and their derivatives shall
have the meaning herein given (and when inconsistent with the context,
words in the present tense include the future, words in the plural
number include the singular and words in the singular include the
plural).
AFFILIATE
An entity which owns or controls, is owned or controlled
by or is under common ownership with grantee.
ANNIVERSARY DATE
A mutually agreed to calendar date which will serve as that
date on which future basic rates may be adjusted according to an annual
cycle.
BASIC CABLE
The tier of service regularly provided to all subscribers
that includes the retransmission of all must carry broadcast television
signals as defined in rules established by the Federal Communications
Commission (FCC) or any other applicable government regulations in
the absence of at least three must carry signals, any unaltered broadcast
television signals and the public education and government channels,
as required by the franchising authority or other applicable government
authority pursuant to Title VI of the Cable Communications Policy
Act or other applicable governmental act.
BASIC SUBSCRIBER REVENUES
All remuneration received directly by the grantee from subscribers
in payment for regularly furnished basic cable television service,
but shall not include any taxes on services furnished by the grantee
imposed on any subscriber or user by any government, governmental
unit, political subdivision, agency instrumentality and collected
by the grantee.
BOARD
The Board of Supervisors of East Caln Township.
CABLE SERVICE
A.
The one way transmission to subscribers of video
programming or other programming service.
B.
Subscriber interaction, if any, which is required
for the selection of such video programming or other programming service.
CABLE TELEVISION SYSTEM (CATV)
A system of antennas, cables, wires, lines, towers, wave
guides or other conductors, converter, equipment or facilities, designed
and constructed for the purpose of producing, receiving, transmitting,
amplifying and distributing audio, video and other forms of electronic
or electric signals, located in the Township.
FRANCHISE
The initial authorization or renewal thereof issued by the
Township, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate or otherwise, which
authorizes construction and operation of the cable television system
for the purpose of offering cable service.
FRANCHISE AREA
That area within the municipal limits of the Township as
now or hereafter constituted.
GRANTEE
The grantee (franchise holder) of rights granted by the Township
under this chapter. A franchisee.
GROSS SUBSCRIBER REVENUES
The monthly cable service revenues actually received by the
grantee from subscribers of the cable system. Included are revenues
actually received in payment for basic cable services and additional
services such as, but not limited to, HBO, Cinemax, Showtime, Disney
and similar programming. Such phrase shall not include any taxes on
cable service which are imposed directly or indirectly on any subscriber
thereof by any governmental unit or agency and which are collected
by the grantee on behalf of such governmental unit or agency.
PAY SERVICES REVENUES
Gross subscriber revenues received from so-called premium
channels such as, but not limited to, HBO, Cinemax, Showtime, Disney
and similar programming less the amount which the franchise actually
pays to the provider of said services.
PUBLIC WAY
The surface of and space above and below and within the right-of-way
of any public street, highway, freeway, bridge, land path, alley,
court, boulevard, sidewalk, pathway, way, lane, public way, drive,
circle or other public right-of-way including, but not limited to,
public utility easements, dedicated utility strips or right-of-way
and any temporary or permanent fixtures or improvements located thereon,
now or hereafter held, owned or dedicated to the Township.
SERVICE TIER
A category of cable service provided by grantee and for which
a separate charge is made by grantee.
STATE-OF-THE-ART
The latest in cable television technology which may be practically
applied within the Township.
SUBSCRIBER
A person or user of the cable system who lawfully receives
cable service or other services therefrom with grantee's expressed
permission.
TOWNSHIP
The Township of East Caln, Chester County, Pennsylvania,
also called the "franchising authority."
VIDEO PROGRAMMING
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
Upon application duly made, the Township may
grant to a designated grantee by a duly executed franchise agreement
the right and privilege to engage in the business of operating and
providing a cable television system within the Township, and for that
purpose subject to the review and prior approval of the Township Engineer
when deemed necessary by the Board to erect, install, construct, repair,
replace, maintain and retain in, on, over, under, upon, across and
along any public way, and all extensions thereof and additions thereto
in the franchise area, such as poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, pedestals, amplifiers and other necessary
Township owned or leased property. Any such grant shall be solely
for the purpose of transmission and distribution of audio, digital
and video impulses and television energy in accordance with the laws
and regulations of the United States of America, of the Commonwealth
of Pennsylvania and of this Township. The Township may promulgate
a form for the making of any such application, and in the event such
form is promulgated, then application shall be only on such form.
Any right granted pursuant to this chapter shall be conditioned on
the faithful performance and observance of the conditions, regulations
and reservations herein specified and shall further be conditioned
upon the prompt payment of the amounts provided for herein.
The right of any grantee to the use and occupancy
of the public way shall be exclusive in the grantee. The Township
shall require a franchise agreement of the grantee and of any other
individual or company engaging in the cable television business within
any portion of the Township. Further, any grantee shall have the right
in accordance with any applicable laws, rules or regulations to adjust
current rates according to the evaluation of those rates effected
by any other grantee operating a cable television franchise in the
Township. Such adjustments shall be accomplished through notification
filed with the Township Secretary and shall occur automatically on
the date established by the grantee.
The grantee shall maintain on file with the
Township Secretary a schedule setting forth all rates and charges
made to subscribers for basic cable television service, including
connection and service charges. Notice of change in rates and charges
shall be filed with the Township Secretary. The grantee shall submit
such notice of rate changes at least 45 days prior to the proposed
effective date of the adjusted rates. The Township shall, at its option,
have the opportunity to meet with the grantee to discuss rate adjustment,
provided such meetings occur 30 days prior to the effective date of
such adjustment. Normal rate adjustments shall not occur more frequently
than on an annual basis with the anniversary date relative to the
adjustments understood to be the beginning and end of the annual cycle.
Intervening rate adjustments which become necessary shall be permitted
if increased operating costs are caused by increases in copyright
payments, utility pole or conduit rental, programming charges or franchise
fee. Other intervening rate adjustments shall occur through authorization
in law or through the action of an agency of government or court of
competent jurisdiction.
The Township shall have the right to terminate
any cable television franchise in the event of the failure of the
franchise holder (grantee) to perform any material provision of this
chapter or in the event of any breech of the franchise agreement.
In considering termination for just cause, initiated by the Township,
the following provisions shall apply exclusively:
A. Notice of violation. In the event that the Township
alleges that the grantee has not complied with the terms of this chapter
or the franchise agreement, it shall notify the grantee of the exact
nature of the alleged noncompliance.
B. Grantee's right to cure or respond.
(1)
Grantee shall have 30 days after receipt of
the notice described in this section to:
(a)
Respond to the Township, contesting the allegation
on noncompliance; or
(b)
To cure such default, if it cannot be cured
within a period of 30 days, to specifically describe and immediately
initiate reasonable steps to remedy such default, together with the
projected date of completion.
(2)
The Township may reject the grantee's proposed
remedy and time for performance in the event the same is not reasonable
as determined by the Township in the exercise of its sole discretion.
C. Public hearing. In the event that grantee fails to
respond to the Township's notice, or in the event that the alleged
default is not remedied within 30 days after the Township's initial
notification (or any extension agreed to by the Township for performance),
the Township shall schedule a public hearing to investigate the grantee's
default. Ten days prior notice of the hearing shall be given to grantee.
The hearing shall be conducted in accordance with the Local Agency
Law.
D. Enforcement. Subject to the applicable Federal and
Commonwealth law, in the event the Township, after hearing, determines
that the grantee is in default of its franchise agreement or any of
the provisions of this chapter, the Township may:
(1)
Foreclose on all or any part of any security
provided under this chapter, if any, including without limitation,
any bonds or other surety; provided however, such foreclosure shall
only be in such manner and in such amount as the Township reasonably
determines is necessary to remedy default.
(2)
Commence an action for equitable relief, monetary
damages or both.
(3)
Revoke the franchise agreement and terminate
the grantee's right to operate a cable television system within the
Township.
(4)
Seek specific performance of any provision of
the franchise agreement, plus damages, if applicable.
E. The grantee shall not be relieved of any of its obligations
to comply promptly with any provisions of this chapter or the franchise
agreement by reason of any failure of the Township to enforce prompt
compliance. The Township's waiver of grantee's noncompliance or default,
at any time, shall not act as a waiver of any future default. Provided,
however, grantee shall not be held in default or noncompliance, nor
suffer any enforcement or penalty relating thereto, where such is
caused by strikes, act of God, power outages or other events reasonably
beyond its ability to control.
F. Upon expiration of its franchise, should the grantee
not have acquired an extension or renewal thereof and accepted the
same, it may have and it is hereby granted the right to enter upon
the public way or other Township property, subject to the requirement
that it restore any disturbed areas to the condition immediately preexisting
such removal. As a condition precedent thereto, the grantee shall
compute and pay to the Township any and all sums then due and owing,
computed as the effective date of the franchise termination. All final
payments shall be due within 45 days of the termination date.
From and after the effective date of this chapter, it shall be unlawful for any person to construct, install or maintain with any public way in the Township, or any other public or private property within the Township, any equipment or facilities for the transmission and distribution of audio, digital and video impulses, including television and radio signals, through a cable television system unless a franchise authorizing such use has first been obtained from the Township and unless and until such franchise is in full force and effect. Should any person (a grantee is a person) violate any of the terms, conditions or provisions of this chapter or of a franchise agreement, or fail regulating the use by any person of the public way or if any grantee shall violate any other lawful rule or regulation applicable to it, Township, Commonwealth or Federal, and continue to violate the same for a period of 30 days after notification in writing to desist from such violation, the grantee may at the Township's option, be deemed to be in default of its franchise and have forfeited and annulled all of its rights and privileges granted under this chapter and the franchise agreement and such franchise may be terminated by the Township. Any notice given pursuant to §
A235-17A shall be deemed to have fulfilled the 30 day notice to this section.
Any cable television franchise operating within the Township existing on the effective day of this chapter shall be subject to its provisions. Within 30 days following adoption of this chapter the Township shall undertake proceedings pursuant to §
A235-5 hereof to determine renewal of any existing franchise, which franchise shall then be subject to all of the terms and conditions of this chapter. Within 30 days after the Board authorized renewal, the Township and the grantee thereof shall enter into a revised cable television franchise agreement complying with the provisions of this chapter. Failure on the part of any existing franchise holder to comply with the renewal process shall subject it to the termination provisions of §
A235-15 thereof.