Borough of Malvern, PA General Provisions; Terminology

[Amended 9-20-1994 by Ord. No. 94-6]

When not inconsistent with the text, words used in the present tense include the future tense; words in the plural include the singular and words in the singular include the plural. Unless otherwise expressly stated, words not defined in this section shall be given the meaning set forth in Title 47 of United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. § 521 et seq., as amended, and if not defined therein, their common and ordinary meaning.

For purposes of this chapter, the following terms shall have the meaning indicated, unless otherwise expressly stated or the context clearly indicates otherwise:

ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for public, educational and/or governmental use.

AFFILIATE

Any person who owns or controls, is owned or controlled by or is under common ownership or control with the franchisee.

ASSOCIATED EQUIPMENT

All equipment in a cable subscriber's home that is used to receive the basic service, regardless of whether such equipment is additionally used to receive other tiers of regulated programming service and/or unregulated service. Equipment shall include, but not be limited to:

(1)

Converter boxes.

(2)

Remote control units.

(3)

Connections for additional television receivers.

(4)

Other cable home wiring.

BASIC SERVICE

Any service tier that includes the retransmission of local broadcast signals.

BASIC SERVICE RATE

The rate charged by a cable operator for basic service and associated equipment costs.

BOROUGH

The Borough of Malvern, Pennsylvania, represented by the Borough Council.

BOROUGH CODE

The Pennsylvania Borough Code.

CABLE ACT

The Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended from time to time.

CABLE OPERATOR

Any person or group of persons that provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or who otherwise owns, controls or is responsible for, through and arrangement, the management and operation of a cable system.

CABLE SERVICE or SERVICE

The one-way transmission to subscribers of video programming or other programming services; and subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

CABLE SYSTEM or 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 television service which includes video programming and which is provided to multiple subscribers within the Borough, but such term does not include:

(1)

A facility that serves only to retransmit the television signals of one or more television signals of one or more television broadcast stations.

(2)

A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control or management, unless such facility or facilities use any public right-of-way, including streets or easements.

(3)

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 to the extent such facility is used in the transmission of video programming, whether on a common-carrier or non-common-carrier basis, directly to subscribers.

(4)

Any facilities of any electric utility used solely for operating its electric utility systems.

COUNCIL

The Borough Council.

EDUCATIONAL ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for noncommercial educational use.

FCC

The Federal Communication Commission, its designee or any successor governmental entity thereto.

FEDERAL LAW

The Federal Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and all regulations promulgated by the FCC thereunder, as any of the foregoing may be amended from time to time.

FRANCHISE

The nonexclusive rights granted in accordance with this chapter to construct, operate and maintain a cable system along the public rights-of-way within all or a specified area of the Borough. No such authorization shall include a license or permit to a system for the provision of noncable services, nor mean nor shall it include any license or permit required for the privilege of transacting and carrying on a business within the Borough as required by the ordinances and laws of the Borough or for excavating or performing other work in or along public rights-of-way.

FRANCHISE AREA

The area of the Borough that the franchisee is authorized to serve by its franchise.

FRANCHISEE

The natural person(s), partnership(s), domestic or foreign corporation(s), association(s), joint venture(s) or organization(s) of any kind which have been granted a cable television franchise by the Borough.

GOVERNMENTAL ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for noncommercial government access use.

GROSS ANNUAL REVENUES

Any and all cash, credits, property or other consideration of any kind or nature received annually, directly or indirectly, by the franchisee, its affiliates or any person in which the franchisee has a financial interest, or by any other entity that is a cable operator of the system arising from, attributable to or in any way derived from the provision by the franchisee of cable service, including the studios and other facilities associated therewith. Gross annual revenues include but are not limited to monthly fees charged subscribers for any basic, optional, premium, per-channel or per-program service; installation, disconnection, reconnection and change-in-service fees; leased channel fees; late fees and administrative fees; fees, payments or other consideration received from programmers for carriage of programming on the system; revenues from converter rentals or sales; studio rental, production equipment and personnel fees; advertising revenues; barter; revenues from program guides; and revenues from home shopping and bank-at-home channels. The Borough may require that gross annual revenues also include revenues from the sale or carriage of noncable services, including information services. Gross annual revenue shall be the basis for computing the franchise fee under this chapter. Gross annual revenues shall not include any taxes on services furnished by the franchisee which are imposed directly on any subscriber or user by the state, Borough or other governmental unit and which are collected by the franchisee on behalf of said governmental unit, nor shall it include revenue derived from the sale or rental of real property interests of the franchisee.

MANAGER

The Borough Manager.

MINIMUM CUSTOMER SERVICE STANDARDS

The minimum customer service standards established by the FCC pursuant to federal law.

NONCOMMERCIAL

Refers to programming, the primary purpose of which is not to propose a sale or barter of a commercial product or service. The term expressly does not refer to programming the cost of which is underwritten by one or more commercial or noncommercial programmers, even where the underwriting is acknowledged as part of the program.

PERSON

An individual, partnership, association, joint-stock company, organization, corporation or any lawful successor thereto or transferee thereof.

PUBLIC ACCESS CHANNEL

Any channel on a cable system set aside by the franchisee for noncommercial use by the general public or noncommercial organizations and which is available for such use on a nondiscriminatory basis.

PUBLIC RIGHT-OF-WAY

The surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement or similar property in which the Borough now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein to a "public right-of-way" shall be deemed to be a representation or guaranty by the Borough that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the Borough and as the Borough may have the undisputed right and power to give.

SALE

Any sale, exchange or barter transaction.

SERVICE TIER

A category of cable service provided by the franchisee and for which a separate charge is made by the franchisee.

STREET

The surface of and the space above or below any public street, public roadway, public highway, public freeway, public lane, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive or any public easement or public right-of-way now or hereafter held by the Borough which shall entitle the franchisee to the use thereof for the purposes of installing over poles said wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and appurtenant to the operation of the system.

SUBSCRIBER

Any person who legally receives cable service and noncable service, with the exception of telephone-like services, whether or not a fee is paid for such service.

SYSTEM FACILITIES or FACILITIES

Cable system equipment used by the franchise to provide service in the franchise area.

TRANSFER

Any transaction in which an ownership or other interest in the franchisee, its cable system or any person that is a cable operator of the cable system is transferred from one person or group of persons to another person or group of persons so that control of the franchisee is transferred; or the rights and/or obligations held by the franchisee under a franchise are transferred or assigned to another person or group of persons. Unless otherwise specified, control for these purposes means working control, in whatever manner exercised. Unless otherwise specified, the addition, deletion or other change of any general partner of the franchisee, any person who owns or controls the franchisee or a cable operator of the cable system is such a change of control.

USER

A person or organization utilizing a channel or equipment and facilities for purposes of producing and/or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.