[HISTORY: Adopted by the Board of Commissioners
of the Township of Nether Providence as indicated in article histories.
Amendments noted where applicable.]
[Adopted 4-13-2000 by Ord. No. 642[1]]
[1]
Editor's Note: This ordinance also superseded
former Ch. A309, Cable Television, adopted 1-11-1979 by Ord. No. 490,
as amended 4-14-1988 by Ord. No. 555.
A.
Title. This ordinance shall be known and may be cited
as the "Nether Providence Cable Communications Regulatory Code."
B.
Purpose. The Township of Nether Providence finds that
the development of cable systems has the potential of having a great
benefit to and positive impact on the people of Nether Providence.
Because of the complex and rapidly changing technologies associated
with cable television, the Township also finds that public convenience,
safety and general welfare can best be served by vesting in the Township,
or such persons as the Township designates, the power to regulate
certain aspects of the construction and operation of cable systems.
Further, the Township recognizes that cable systems have the capacity
to provide not only entertainment and information services to Township
residents but also a variety of broadband, interactive services to
Township agencies and other institutions. For these purposes, the
following goals, among others, underlie the provisions set forth in
this ordinance:
(1)
Cable services should be available to as many Township
residents as possible.
(2)
Each cable system should be capable of accommodating
both the present and reasonably foreseeable future cable-related needs
of the community.
(3)
Each cable system should be constructed and maintained
during the franchise term so that components may be integrated to
the maximum extent possible into existing system facilities.
(4)
Each cable system should be responsive to the needs
and interests of the local community.
C.
The Township intends that all provisions set forth
in this ordinance be construed to serve the public interest and the
foregoing public purposes, and that any franchise issued pursuant
to this ordinance be construed to include the foregoing findings and
public purposes as integral parts thereof.
For the purposes of this ordinance, the following
terms, phrases, words and abbreviations shall have the meanings given
herein, unless otherwise expressly stated. 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; and the masculine
gender includes the feminine gender. The words "shall" and "will"
are mandatory, and "may" is permissive. Unless otherwise expressly
stated, words not defined herein shall be given the meaning set forth
in the Cable Act and, if not defined therein, their common and ordinary
meaning.
Any channel on a cable system set aside by the franchisee
for public, educational and/or governmental use.
Any person who owns or controls, is owned or controlled by
or is under common ownership or control with the franchisee and is
involved with the operation of the franchisee's cable system.
The Township Commissioners of Nether Providence Township.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended by the Cable Television Consumer Protection and
Competition Act of 1992, and the Telecommunications Act of 1996, as
may be further amended from time to time.
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.
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 the Township,
but such term does not include 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; a facility that serves only subscribers
in one or more multiple-unit dwellings under common ownership, control
or management, unless such facility uses any right-of-way; a facility
of a common carrier which is subject, in whole or in part, to the
provisions of Subchapter II of the Communications Act of 1934, 47
U.S.C. § 201 et seq., 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
noncommon-carrier basis, directly to subscribers; or any facilities
of any electric utility used solely for operating its electric utility
systems.
Any channel on a cable system set aside by the franchisee
for noncommercial educational use.
The Federal Communications Commission, its designee or any
successor governmental entity thereto.
The nonexclusive rights granted in accordance with this ordinance
to construct, operate and maintain a cable system along public rights-of-way
within all or a specified area of the Township. Any such authorization,
in whatever form granted, may specifically include a license or permit
to use the system for the provision of noncable services; it shall
not mean or include any license or permit required for the privilege
of transacting and carrying on a business within the Township as required
by the ordinances and laws of the Township, or for excavating or performing
other work in or along public rights-of-way.
A contract entered into in accordance with the provisions
of this ordinance between the Township and a franchisee that sets
forth terms and conditions under which the franchise will be exercised.
The area of the Township that the franchisee is authorized
to serve by its franchise agreement.
The person(s) which has been granted a franchise by the Township.
Any channel on a cable system set aside by the franchisee
for noncommercial government access use.
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 cable system, 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;
revenues from home shopping and bank-at-home channels; and revenues
from the sale or carriage of noncable services, including information
services; provided, however, that the definition as stated herein
is not intended to include any revenues which may not be subjected
to the imposition of franchise fees by a franchisor/municipality under
the provisions of the federal Cable Telecommunications Act of 1996,
as now or hereafter amended, and the regulations promulgated thereunder
from time to time. Gross annual revenues shall be the basis for computing
the franchise fee under this ordinance. Gross annual revenues shall
not include any revenue derived from the sale or rental of real property
interests of the franchisee.
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.
An individual, partnership, association, joint-stock company,
joint venture, organization, domestic or foreign corporation or any
lawful successor thereto or transferee thereof.
A cable service that is sold on a per-channel or per-program
basis.
Any channel on a cable system set aside by the franchisee
for noncommercial use by the general public and which is available
for such use on a nondiscriminatory basis.
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, parkway, waterway, easement
or similar areas in which the Township 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, or in any franchise agreement,
to a "public right-of-way" shall be deemed to be a representation
or guaranty by the Township 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 Township and as the Township may have
the undisputed right and power to give.
Any sale, lease, exchange or barter transaction or any other
transaction involving the transfer or other disposition of property
or the provision of a service for compensation of any nature.
A category of cable service provided by the franchisee and
for which a separate charge is made by the franchisee.
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 Township which shall entitle the franchisee
to the use thereof for the purposes of installing over poles such
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.
Any person who legally receives cable service.
Cable system equipment used by the franchisee to provide
service in the franchise area.
The Township of Nether Providence, Delaware County, Pennsylvania,
as represented by the Township Commissioners.
Any transaction that results in a change of control over
the franchisee or the cable system; or in which the rights and/or
obligations held by the franchisee under a franchise agreement are
transferred or assigned to another person or group of persons. Unless
otherwise specified in a franchise agreement, control for these purposes
means working control, in whatever manner exercised. Unless otherwise
specified in a franchise agreement, 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.
A person 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.
A.
Grant of franchise. The Township may grant one or
more cable television franchises, and each such franchise shall be
awarded in accordance with and subject to the provisions of this ordinance.
This ordinance may be amended from time to time, and in no event shall
this ordinance be considered a contract between the Township and a
franchisee such that the Township would be prohibited from amending
any provision hereof. The term of the franchise agreement shall be
10 years with an automatic renewal of five additional years at the
option of the Township and the franchisee.
B.
Franchise required. No person may construct or operate
a cable system over, on or under a public right-of-way in the Township
without a franchise granted by the Township unless otherwise authorized
by law, and no person may be granted a franchise without having entered
into a franchise agreement with the Township pursuant to this ordinance.
C.
Franchise characteristics.
(1)
A franchise authorizes use of streets within the Township
for installing cables, wires, lines, optical fiber, underground conduit
and other facilities to operate a cable system, but does not expressly
or implicitly authorize the franchisee to provide service to or install
cables, wires, lines, underground conduit or any other equipment or
facilities on private property without owner consent [except for use
of compatible easements pursuant to Section 621 of the Cable Act,
47 U.S.C. § 541(a)(2)] or to use publicly or privately owned
conduits without a separate agreement with the owners.
(2)
The term of a franchise shall not exceed 15 years
and may not exceed five years unless the franchise agreement contains
clear and enforceable provisions for regulating upgrades, improving
customer service requirements, reevaluating access requirements and
making such other requirements as may be necessary in light of advancements
in technology.
(3)
A franchise is nonexclusive and revocable and will
not explicitly or implicitly preclude the issuance of other franchises
to operate cable systems within the Township or affect the Township's
right to authorize use of Township streets by other persons to operate
cable systems or for other purposes as it determines appropriate.
(4)
Once a franchise agreement has been accepted and executed
by the Township and a franchisee, such franchise agreement shall constitute
a contract between the franchisee and the Township, and the terms,
conditions and provisions of such franchise agreement, subject to
this ordinance and all other duly enacted and applicable laws, shall
define the rights and obligations of the franchisee and the Township
relating to the franchise.
(5)
All privileges prescribed by a franchise shall be
subordinate to any prior lawful occupancy of the streets, and the
Township reserves the right to reasonably designate where a franchisee's
facilities are to be placed within the streets depending upon engineering
constraints.
(6)
A franchise shall be a privilege that is in the public
trust and personal to the original franchisee. Except as otherwise
agreed to in a franchise agreement, no transfer of a franchise shall
occur other than to the principal parents of the franchisee, a parent
corporation, a subsidiary or affiliate corporation of a parent company
or subsidiary or affiliate corporation of the franchisee or any firm
owned by the franchisee without the prior consent of the Township
pursuant to this ordinance and the franchise agreement, which consent
shall not be unreasonably withheld.
D.
Franchisee subject to other laws; police power.
(1)
A franchisee shall at all times be subject to and
shall comply with all applicable federal, state and Township laws.
A franchisee shall at all times be subject to all lawful exercise
of the police power of the Township, including all rights the Township
may have under 47 U.S.C. § 552.
(2)
No course of dealing between a franchisee and the
Township, nor any delay on the part of the Township or franchisee
in exercising any rights hereunder, shall operate as a waiver of any
such rights of the Township or franchisee or acquiescence in the actions
of the Township or franchisee in contravention of rights except to
the extent expressly waived by the Township or franchisee or expressly
provided for in a franchise agreement.
(3)
The Township shall have such authority to regulate
cable systems, franchisees and franchises as may now or hereafter
be lawfully permissible; and all rights granted to the Township by
the Cable Act and the FCC are hereby reserved, whether expressly enumerated
or not.
E.
Interpretation of franchise terms.
(1)
The express terms of this ordinance will prevail over
conflicting or inconsistent provisions in a franchise agreement.
(2)
The provisions of a franchise agreement will be liberally
construed in favor of the Township.
(3)
Except as to matters that are governed by federal
law or regulation, a franchise agreement will be governed by and construed
in accordance with the laws of the State of Pennsylvania.
F.
Right of condemnation reserved. Nothing in this ordinance
or the franchise shall limit any right the Township may have to acquire
by eminent domain or otherwise any property of franchisee.
A.
Written application.
(1)
A written application shall be filed with the Township
for grant of an initial franchise; renewal of a franchise under either
the formal or informal procedures in accordance with Section 626 of
the Cable Act, 47 U.S.C. § 546; or modification of a franchise
agreement pursuant to this ordinance or a franchise agreement. The
Township may require the applicant to demonstrate in its application
compliance with all requirements of this ordinance and all applicable
laws.
(2)
To be acceptable for filing, a signed original of the application shall be submitted, together with 10 copies. The application must be accompanied by the required application filing fee as set forth in § A309-4E, conform to any applicable request for proposals and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(3)
All applications accepted for filing shall be made
available by the Township for public inspection.
B.
Application for grant of an initial franchise.
(1)
A person may apply for an initial franchise by submitting a proposal and requesting an evaluation of that proposal pursuant to Subsection B(4).
(2)
The proposal for the grant of an initial franchise
shall contain, at minimum, the following information:
(a)
Name and address of the applicant and identification
of the ownership and control of the applicant, including the names
and addresses of the 10 largest holders of an ownership interest in
the applicant and affiliates of the applicant and all persons with
5% or more ownership interest in the applicant and its affiliates;
the persons who control the applicant and its affiliates; all officers
and directors of the applicant and its affiliates; and any other business
affiliation and cable system ownership interest of each named person.
(b)
A demonstration of the applicant's technical
ability to construct and/or operate the proposed cable system, including
identification of key personnel.
(c)
Applicant's legal qualifications.
[1]
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system, including but
not limited to a demonstration that the applicant meets the following
criteria:
[a]
The applicant must not have submitted
an application for an initial or renewal franchise to the Township
which was denied on the ground that the application failed to serve
the public interest or as to which any challenges to such franchising
decision were finally resolved adversely to the applicant within three
years preceding the submission of the application.
[b]
The applicant must not have had
any cable television franchise validly revoked by any franchising
authority within three years preceding the submission of the application.
[c]
The applicant must have the necessary
authority under Pennsylvania law to operate a cable system.
[d]
A franchise will not be issued
to an applicant that may not hold the franchise as a matter of federal
law. An applicant must have or show that it is qualified to obtain
the necessary federal licenses or waivers required to operate the
system proposed.
[e]
An applicant shall not be issued
a franchise if, at any time during the 10 years preceding the submission
of the application, the applicant was convicted of any act or omission
of such character that the applicant cannot be relied upon to deal
truthfully with the Township and the subscribers of the cable system
or to substantially comply with its lawful obligations under applicable
law, including obligations under consumer protection laws and laws
prohibiting anticompetitive acts, fraud, racketeering or other similar
conduct.
[f]
An applicant shall not be issued
a franchise if it files materially misleading information with the
Township or intentionally withholds information that the applicant
lawfully is required to provide.
[g]
An applicant shall not be issued
a franchise if an elected official of the Township holds a controlling
interest in the applicant or an affiliate of the applicant.
[2]
Notwithstanding the foregoing, the Township
shall provide an opportunity to an applicant to show that it would
be inappropriate to deny it a franchise under § A309-4B(2)(c)[1][c],
[d] and [e] by virtue of the particular circumstances surrounding
the matter and the steps taken by the applicant to cure all harms
flowing therefrom.
(d)
A statement prepared by a duly authorized financial
officer regarding the applicant's financial ability to complete the
construction and operation of the cable system proposed.
(e)
A description of the applicant's prior experience
in cable system ownership, construction and operation and identification
of communities in which the applicant or any of its principals have
or have had a cable franchise or license or any interest therein.
(f)
Identification of the area of the Township to
be served by the proposed cable system, including description of the
proposed franchise areas boundaries.
(g)
A detailed description of the physical facilities
proposed, including channel capacity, technical design, performance
characteristics, head-end and access facilities. Where applicable,
a description of the construction of the proposed system, including
an estimate of plant mileage and its location, the proposed construction
schedule, a description, where appropriate, of how services will be
converted from existing facilities to new facilities and information
on the availability of space in conduits, including, where appropriate,
an estimate of the cost of any necessary rearrangement of existing
facilities.
(h)
The proposed rate structure, including projected
charges for each service tier, installation, converters and other
equipment or services.
(i)
A demonstration of how the applicant's proposal
will reasonably meet the future cable-related needs and interests
of the community, including descriptions of how the proposal will
meet the needs described in any recent community needs assessment
conducted by or for the Township and how the proposal will provide
adequate public, educational and governmental access channel capacity,
facilities or financial support to meet the community's needs and
interests.
(j)
Pro forma financial projections for the proposed
franchise term, including a statement of projected income and a schedule
of planned capital additions, with all significant assumptions explained
in notes or supporting schedules.
(k)
If an applicant proposes to provide cable service
to an area already served by an existing franchisee, the identification
of the area where the overbuild would occur, the potential subscriber
density in the area that would encompass the overbuild and the ability
of the streets to accommodate an additional system.
(l)
Any other information as may be reasonably necessary
to demonstrate compliance with the requirements of this ordinance
or that bears on the applicant's qualifications to operate a cable
system within the Township.
(m)
Information that the Township may request of
the applicant that is relevant to the Township's consideration of
the application.
(n)
An affidavit or declaration of the applicant
or authorized officer certifying the truth and accuracy of the information
in the application, acknowledging the enforceability of application
commitments and certifying that the proposal meets all federal and
state law requirements.
(3)
The Township shall review each application for a franchise
to determine whether the public interest would be served by granting
the same and shall consider in particular:
(a)
The extent to which the applicant has substantially
complied with the applicable law and the material terms of any existing
cable franchise for the Township.
(b)
Whether the quality of the applicant's service
under an existing franchise in Nether Providence, including signal
quality, response to customer complaints and billing practices, has
been reasonable in light of community needs and interests of the communities
served.
(c)
Whether the applicant has the financial, technical
and legal qualifications to provide cable service.
(d)
Whether the applicant's proposal is reasonable
to meet the future cable-related needs and interests of the community,
taking into account the cost of meeting such needs and interests.
(e)
Whether, to the extent not considered as part of § A309-4B(3)(d), the applicant will provide adequate public, educational and governmental access channel capacity, facilities or financial support.
(f)
Whether issuance of a franchise is in the public
interest considering the immediate and future effect on the public
rights-of-way and private property which would be used by the cable
system, including the extent to which installation or maintenance
as planned would require replacement of property or involve disruption
of property, public services or use of the public rights-of-way; the
effect of granting a franchise on the ability to meet the cable-related
needs and interests of the community; and, to the extent permissible
pursuant to the provisions of the Cable Act, the comparative superiority
or inferiority of competing proposals.
(g)
Whether the applicant or an affiliate of the
applicant owns or controls any other cable system in the Township
or whether grant of the application may eliminate or reduce competition
in the delivery of cable service in the Township.
(h)
Any other factors that reasonably bear on the
applicant's qualifications to operate a cable system in the Township.
(4)
If the Township finds that it is in the public interest
to issue a franchise considering the factors set forth above, it shall
issue a franchise, subject to the applicant's entry into an appropriate
franchise agreement. If the Township denies a franchise, it will issue
a written decision explaining why the franchise was denied. Prior
to deciding whether to issue or not to issue a franchise, the Township
may hold one or more public hearings or implement other procedures
under which comments from the public on an applicant's proposal may
be received. The Township also may grant or deny a request for a franchise
based on its review of an application without further proceedings
and may reject any application which is incomplete. This ordinance
is not intended and shall not be interpreted to grant any applicant
or existing franchisee standing to challenge the issuance of a franchise
to another.
(5)
If the Township grants a franchise subject to the
applicant's entry into a franchise agreement, the Township and the
franchisee shall agree on the terms of a franchise agreement within
30 calendar days from the date of the Township resolution granting
the franchise. This period may be extended for good cause by the Township.
If agreement is not reached with the Township within 30 calendar days
from the date of the Township resolution granting the franchise, or
if the period is not extended by the Township, the franchise will
be null and void without further action by the Township. The Township
shall approve or disapprove the proposed agreement by resolution or
may direct that it be subject to further negotiation. In approving
additional franchise agreements, each agreement will provide the same
material obligations as the other(s) relating to franchise fees, customer
service standards and service area.
C.
The Township shall conduct renewal proceedings in accordance with Section 626 of the Cable Act, 47 U.S.C. § 546, as amended. If Section 626 of the Cable Act is repealed or for any other reason is inapplicable to a renewal proceeding, such proceeding shall be conducted as a proceeding on a request for initial franchise in accordance with Subsection B hereof.
D.
Application for modification of a franchise. An application
for modification of a franchise agreement shall include, at minimum,
the following information:
(1)
The specific modification requested;
(2)
The justification for the requested modification,
including the impact of the requested modification on subscribers
and others, and the financial impact on the applicant if the modification
is approved or disapproved, demonstrated through, inter alia, submission
of financial pro forma;
(3)
A statement whether the modification is sought pursuant
to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if
so, a demonstration that the requested modification meets the standards
set forth in 47 U.S.C. § 545;
(4)
Any other information that the applicant believes
is necessary for the Township to make an informed determination on
the application for modification; and
(5)
An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information in the
application and certifying that the application is consistent with
all federal and state law requirements.
E.
Filing fees. To be acceptable for filing, an application
submitted after the effective date of this ordinance shall be accompanied
by a filing fee in the following amount, as appropriate:
F.
Public hearings. An applicant shall be notified of
any public hearing held in connection with the evaluation of its proposal
and shall be given an opportunity to be heard.
Unless a review of future cable-related needs
and interests shows that different standards should apply, every cable
system must at least satisfy the following requirements:
A.
Minimum capacity. Any cable system constructed, upgraded
or reconstructed after the effective date of this ordinance at a minimum
shall provide for the broad categories of programming and the cable-related
needs of the community. The system shall be designed in accordance
with all applicable FCC guidelines pertaining to consumer interfaces.
B.
Description of system. The franchisee shall provide
the Township as-built maps for the entire system, as modified or upgraded,
to the extent such maps have not previously been provided to the Township.
C.
Interconnection.
(1)
A franchisee shall, at the request of the Township
as specified in its franchise agreement, design the system so that
it may be interconnected with other cable systems within the local
school system.
(2)
The franchisee shall, at the request of the Township,
interconnect with other cable systems.
D.
Provision of service. Unless otherwise specified in
a franchise agreement, after cable service has been established by
activating trunk distribution cable for an area specified in a franchise
agreement, the franchisee shall provide cable service to any household,
business and professional office requesting cable service within that
area, including each multiple-dwelling unit in that area. In addition,
the franchise shall provide each public, nonprofit private and parochial
school, as well as the police station, two fire stations, the Furness
Library, Township building, the Taylor Arboretum and the Leiper House,
with a single cable television connection and basic and second tier
service without charge. Additional connections and service will be
charged to the facility by the franchisee at cost to the franchisee
of time and materials only.
E.
Technical standards.
(1)
Any cable system within the Township shall meet or
exceed the technical standards set forth in 47 C.F.R. Subpart K and
any other applicable technical standards as specified in a franchise
agreement.
(2)
A franchisee shall not design, install or operate
its facilities in a manner that will interfere with the signals of
any broadcast station, the facilities of any public utility, the cable
system of another franchisee or individual or master antennas used
for receiving television or other broadcast signals.
(3)
At the times specified in the franchise agreement
or as required by FCC rules, the franchisee shall perform, at its
expense, proof of performance tests and such other tests as may be
specified in the franchise agreement designed to demonstrate compliance
with this section, the franchise agreement, and FCC requirements.
The franchisee shall provide the proof of performance test results
promptly to the Township. The Township may require in each franchise
agreement that the franchisee shall provide the Township 10 days'
advance written notice when a proof of performance or other required
test is scheduled so that the Township may have an observer present.
The Township shall have the right to inspect the cable system facilities
during and after their construction to ensure compliance with this
section, the franchise agreement and applicable provisions of local,
state and federal law and may require in a franchise agreement that
the franchisee perform additional tests based upon its prior investigation
of system performance or upon subscriber complaints.
A.
Emergency alert system. In accordance with FCC rules,
the franchisee shall comply with the provisions set forth in federal
regulations as well as any local emergency alert system to afford
viewers emergency information pursuant to regulations (47 C.F.R. Sect.
11.1 et seq., FCC Rules and Regulations - EAS).
B.
Access channels.
(1)
The franchisee shall reserve for use by the Township,
without charge, a portion of its downstream channel capacity for public,
educational and governmental use, which portion shall not exceed the
limits imposed by Section 612 of the Cable Act, 47 U.S.C. Section
532. The Township shall have sole discretion as to use of the governmental
station, including but not limited to all programming, as allowed
by federal communications law.
(2)
The franchisee shall provide all modulators, demodulators,
laser transmitters/receivers and other devices as may be required
to permit use of the upstream and downstream capacity, and that, after
such technology is developed, upon the Township's request, the franchisee
shall make such modifications as may be required to use video compression
technology and any other new technologies that may require two-way
capability and add such equipment in connection with all or part of
the upstream and downstream channel.
(3)
An additional access channel will be made available
when all existing public, educational and governmental (PEG) channels
simultaneously carry nonduplicated, locally produced access programming,
none of which is character generated, continuously for a period of
90 consecutive days.
C.
Studio and equipment.
(1)
The franchisee shall provide to the Township reasonable
access to a facility located within 10 miles of the Township which
shall include an adequate studio, with access to equipment, and production
staff assistance will be provided by the franchisee for use by persons
authorized by the Township on a basis of four hours per month for
training and two hours per month for production work. Additional training
and production time will be provided if it can be reasonably accommodated
by the franchisee. The franchisee shall provide for the Township,
at no direct or indirect charge, a video camera and tripod, to be
kept at the municipal facility, along with proper lighting and sound
equipment to provide excellent playback quality of Township programming.
The franchisee shall provide at the municipal facility a character
generator (or similar equipment to transmit public announcements over
the governmental access station), automated playback equipment and
control facilities so that signals can be received on the upstream
channels or originated from the municipal facility and then routed
from the municipal facility to the system head-end and onto appropriate
channels on the cable system. There shall be no direct or indirect
charge for this equipment.
D.
Remote line telecasting.
(1)
Upon reasonable notice from the Township, the franchisee
shall provide upstream channel capacity for live telecasts from such
public buildings as may be specified in the franchise agreement. At
a minimum, the franchisee will broadcast live all legislative sessions
of the Township Commissioners. The cost of carrying such coverage,
including but not limited to the cost of a camera operator, shall
be borne by the franchisee. There shall be no direct or indirect charge
for this service.
(2)
The franchisee shall make available all devices necessary
to accomplish upstream telecasts through such public facilities.
E.
Advisory Council on Cable Television.
(1)
An Advisory Council on Cable Television may be established
upon enactment of this ordinance. The Council shall consist of three
members appointed by the Township Commissioners, who shall reflect
the diverse community interests of the Township and shall serve for
terms of three years. For the initial appointments, one member shall
be appointed for one year, one member shall be appointed for two years
and one member shall be appointed for three years. A vacancy shall
be filled by the Township Commissioners by appointment for the remainder
of the unexpired term of the member whose position is vacant. No individual
employed by or who has an ownership interest in a franchise granted
pursuant to the ordinance shall be eligible for membership on the
Advisory Council. The Chairperson of the Advisory Council shall be
elected by the members of the Advisory Council for a term of one year.
Appropriations shall be made from time to time by the Township Commissioners
to fund the Advisory Council from fees paid to the Township by the
franchisee pursuant to this ordinance.
(2)
The Advisory Council may have the following functions:
(a)
Advise the Township on applications for franchises
and renewals and modifications of existing franchises.
(b)
Advise the Township on matters which may be
grounds for revocation of the franchise or imposition of penalties
on the franchisee under the provision of this ordinance.
(c)
Advise the Township with respect to rates, policies
regarding services to subscribers and to the operation and use of
the access channels.
(d)
Perform audits of the records of the franchisee
as required by this ordinance, and in the Advisory Council's discretion,
require preparation and filing of information in addition to that
required hereunder if reasonably necessary to the performance of its
functions.
(e)
Report annually to the Township Commissioners
regarding franchise fees received and distributed, the total hours
of utilization of the public access channels and hourly subtotals
for various programming categories and including a review of any plans
submitted during the year by the franchisee for development of new
services.
(f)
Conduct an evaluation of the system at least
every three years in consultation with the franchisee, utilizing technical
consultants, if necessary, who shall be paid from franchise fees received
by the Township from the franchisee, and make recommendations to the
Township for amendments to this ordinance.
(g)
Manage, promote and develop the best use of
the channels, equipment and facilities for public, educational and
governmental use provided by this ordinance or in any franchise agreement
and, in particular, shall promote the use of and set policy for the
use of public, educational and governmental channels with the consent
of the Township Commissioners.
A.
System construction schedule. The franchisee shall
specify the construction schedule.
B.
Construction standards.
(1)
The construction, operation, maintenance and repair
of the cable system shall be in accordance with all applicable sections
of the Occupational Safety and Health Act of 1970, as amended, the
National Electrical Safety Code, the National Electric Code, other
applicable federal, state or local laws and regulations that may apply
to the operation, construction, maintenance or repair of a cable system,
including, without limitation, applicable local zoning and construction
codes and laws and accepted industry practices, all as hereafter may
be amended or adopted.
(2)
All installation of electronic equipment shall be
of a permanent nature, using durable components.
(3)
Without limiting the foregoing, antennas and their
supporting structures (towers) shall be painted, lighted, erected
and maintained in accordance with all applicable rules and regulations
of the Federal Aviation Administration and all other applicable state
or local laws, codes and regulations, all as hereafter may be amended
or adopted.
(4)
Without limiting the foregoing, all the franchisee's
plant and equipment, including, but not limited to, the antennae site,
head-end and distribution system, towers, house connections, structures,
poles, wires, cable, coaxial cable, fiber optic cable, fixtures and
apparatuses shall be installed, located, erected, constructed, reconstructed,
replaced, removed, repaired, maintained and operated in accordance
with good engineering practices, performed by experienced maintenance
and construction personnel so as not to endanger or interfere with
improvements the Township shall deem appropriate to make or to interfere
in any manner with the rights-of-way or legal rights of any property
owner or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic.
(5)
The franchisee shall at all times employ ordinary
care and shall install and maintain in use commonly accepted methods
and devices preventing failures and accidents which are likely to
cause damage, injury or nuisance to the public.
(6)
Any and all streets, public property or private property
which are disturbed or damaged during the construction, repair, replacement,
relocation, operation, maintenance or construction of the system shall
be promptly repaired by the franchisee at its expense.
(7)
A franchisee shall, at its expense, and by a time
specified by the Township, protect, support, temporarily disconnect,
relocate or remove any of its property when required by the Township
by reason of traffic conditions, public safety, street construction,
street resurfacing or widening, change of street grade, installation
of sewers, drains, water pipes, power lines, signal lines, tracks
or any other type of municipal, public utility improvements, street
vacation or for any other purpose where the convenience of the Township
would be served thereby; provided, however, that the franchisee shall,
in all such cases, have the privilege of abandoning any property in
place. The Township shall reimburse a franchisee under this subsection
to the same extent that it reimburses telephone, electric and other
like companies for such disconnection, relocation or removal.
(8)
If any removal, relaying or relocation is required
to accommodate the construction, operation or repair of the facilities
of another person that is authorized to use the public streets, a
franchisee shall, after 30 days' advance written notice, take action
to effect the necessary changes requested by the responsible entity.
The Township may resolve disputes as to responsibility for costs associated
with the removal, relaying or relocation of facilities as among entities
authorized to install facilities in the public streets if the parties
are unable to do so themselves.
(9)
In the event of an emergency or where a cable system
creates or is contributing to an imminent danger to health, safety
or property, the Township may remove, relay or relocate that cable
system without prior notice. When possible, the Township will make
reasonable efforts to notify the franchisee and give the franchisee
reasonable opportunity to cure.
(10)
A franchisee shall, on the request of any person
holding a building moving permit issued by the Township, temporarily
raise or lower its wires to permit the moving of buildings. The expense
of such temporary removal or raising or lowering of wires shall be
paid by the person requesting same, and the franchisee shall have
the authority to require such payment in advance, except in the case
where the requesting person is the Township, in which case no such
payment shall be required. The franchisee shall be given not less
than 10 calendar days' advance notice to arrange for such temporary
wire changes.
(11)
A franchisee shall have the authority to trim
trees that overhang a street of the Township so as to prevent the
branches of such trees from coming in contact with the wires and cables
of the franchisee. Such trimming must be done under the supervision
and direction of the Township but at the expense of the franchisee.
(12)
A franchisee must use existing underground conduits
or overhead utility facilities whenever feasible and may not erect
poles or place equipment in public rights-of-way without notification
to the Township at least 48 hours prior to the installation. Copies
of agreements for use of conduits or other facilities shall be filed
with the Township.
(13)
On streets where electrical and telephone utility
wiring is located underground, either at the time of initial construction
of a cable system or at any time thereafter, a franchisee's cable
shall also be located underground at the franchisee's expense. Between
a street and a subscriber's residence, a franchisee's cable must be
located underground if both electrical and telephone utility wiring
are located underground. If either electric or telephone utility wiring
is aerial, a franchisee may install aerial cable except where a property
owner or resident requests underground installation and agrees to
bear the additional cost of such installation over and above the cost
of aerial installation. In the event that the telephone or electric
utilities are reimbursed by the Township for the placement of cable
underground or the movement of cable, the franchisee shall be reimbursed
on the same terms and conditions as the telephone or electric utilities.
(14)
All wires, cable lines and other transmission
lines, equipment and structures shall be installed and located to
cause minimum interference with the rights and convenience of property
owners. The Township may issue such rules and regulations concerning
the installation and maintenance of a cable system installed in, on
or over the streets as may be consistent with this ordinance and the
franchise agreement. The Township shall have the right to install
and maintain free of charge upon the poles owned by the franchisee
any wire and pole fixtures that do not unreasonably interfere with
the cable system operations of the franchisee.
(15)
All safety practices required by law shall be
used during construction, maintenance and repair of a cable system.
A franchisee shall not place facilities, equipment or fixtures where
they will interfere with any gas, electric, telephone, water, sewer
or other utility facilities or obstruct or hinder in any manner the
various utilities serving the residents of the Township of their use
of any street or any other public right-of-way.
(16)
Prior to erection of any towers, poles or conduits
or the construction, upgrade or rebuild of a system authorized under
this ordinance, the franchisee shall first submit to the Township
and other designated parties in accordance with applicable municipal
ordinances for approval a concise description of the facilities proposed
to be erected or installed, including engineering drawings, if required,
together with a map and plans indicating the proposed location of
all such facilities. There shall be no erection or installation of
any tower, pole, underground conduit or fixture or any without a map
and plans indicating the proposed location of all such facilities.
No erection or installation of any tower, pole, underground conduit
or fixture or any rebuilds or upgrading of the cable communications
system shall be commenced by any person until such approval therefor
has been received from the Township.
(17)
Any contractor proposed for work or construction,
installation, operation, maintenance or repair of system equipment
shall meet the performance standards and be insured and bonded in
accordance with the standards of the franchisee.
(18)
In the event the use of any part of a cable
system is discontinued for any reason for a continuous period of 12
months, or in the event such system or property has been installed
in any street without complying with the requirements of this ordinance
or a franchise agreement or the franchise has been terminated or canceled
or has expired, the franchisee, within 30 days after written notice
by the Township, shall commence removal from the streets of all such
property as the Township may require.
(19)
The Township may extend the time for the removal
of abandoned facilities for a period not to exceed 180 days.
(20)
In the event of such removal or abandonment,
the franchisee shall restore the area to a condition satisfactory
to the Township.
C.
Publicizing proposed construction work. The franchisee
shall publicize significant proposed construction work at least one
week prior to commencement of that work by causing written notice
of such construction work to be delivered to the Township Manager
and by notifying those persons most likely to be affected by the work
by telephone, in person, by mail, by distribution of flyers to residences
or in any other manner reasonably calculated to provide adequate notice.
In addition, before entering onto any person's property, the franchisee
shall make reasonable efforts to contact the property owner or (in
the case of residential property) the resident at least two days in
advance. If the franchisee must enter premises, it must make reasonable
efforts to schedule an appointment at the convenience of the owner
or resident.
A.
Open books and records. The Township shall have the
right to inspect and copy upon two weeks' written notice at any time
during normal business hours all books, receipts, maps, plans, financial
statements, contracts, service complaint logs, performance test results,
records of requests for service and other reasonable material of the
franchisee relating to the operation of the franchisee's system serving
the Township and which are required to perform its regulatory and
compliance monitoring responsibilities under the terms of this ordinance,
a franchise agreement or applicable law.
B.
Reports required. The franchisee shall, upon request,
file the following reports with the Township:
(1)
All reports required by the FCC, including, but not
limited to, any proof of performance tests and results, equal employment
opportunity (EEO) reports and all petitions, applications and communications
of all types submitted by the franchisee to the FCC, the Security
and Exchange Commission (SEC) or any other federal or state regulatory
commission or agency having jurisdiction over any matter affecting
operation of the franchisee's system.
(2)
An annual report setting forth the physical miles
of plant construction and plant in operation during the fiscal year.
Such report shall also contain any revisions to the system as-built
maps filed with the Township. The annual report shall be provided
in February.
(3)
Construction reports will, at the request of the Township,
be sent to the Township bimonthly after the franchise is awarded for
any construction undertaken during the term of the franchise until
construction is complete, including any rebuild that may be specified
in the franchise.
(4)
Proof of performance test results, at the request
of the Township, will be supplied to the Township when sections of
the system are rebuilt and as required in this ordinance.
(5)
Technical tests required by the Township as specified
in this ordinance and the franchise agreement, at the request of the
Township, will be submitted to the Township promptly upon completion
of such tests.
(6)
The following financial reports for the franchise
area, submitted annually to the Township 90 days after the end of
the franchisee's fiscal year:
(a)
An ownership report indicating all persons who
at any time during the preceding year did have control over or benefit
from an interest in the franchise of 5% or more.
(b)
An annual profit and loss statement, year-end
balance sheet and cash-flow statement, certified by a certified public
accountant; an income statement showing subscriber revenue from each
category and source of service provided in the Township.
(c)
An annual list of officers and members of the
Board of Directors of the franchisee and any parent organization.
(7)
The following system and operational reports shall
be made available at no cost to the Township upon request:
(a)
A report on the system's technical tests and
measurements.
(b)
A report on programs and services offered by
the franchisee, including public, educational, governmental and leased
access channels.
(c)
An annual summary of the previous year's activities,
including, but not limited to, subscriber totals for each category
of service offered, including number of pay units sold, new services
offered and the amount collected annually from other users of the
system.
(d)
An annual summary of complaints received and
handled in addition to any reports required in the franchise.
(8)
The franchisee shall maintain and supply upon request
such additional reports with respect to its operation, affairs, transactions
or property as may be reasonably necessary and appropriate to the
performance of any of the rights, functions or duties of the Township
in connection with this ordinance or the franchise.
C.
Records required.
(1)
The franchisee shall at all times maintain:
(a)
All complaints generating work orders received
the preceding 12 months.
(b)
A full and complete set of plans, records and
as-built maps showing the exact location of all cable communications
system equipment installed or in use in the Township, exclusive of
subscriber service drops.
(c)
An annual profit and loss statement, year-end
balance sheet and cash-flow statement, certified by a certified public
accountant; an income statement showing subscriber revenue from each
category and source of service provided in the Township.
(d)
An annual list of officers and members of the
Board of Directors of the franchisee and any affiliates.
(2)
The Township may impose reasonable requests for additional
information, records and documents from time to time.
D.
Performance evaluation.
(1)
The Township may hold scheduled performance evaluations
every 30 months. All such evaluation sessions shall be open to the
public.
(2)
Special evaluation sessions may be held at any time
during the term of the franchise at the request of the Township. If
requested by the Township, such sessions shall be mandatory following
any event that has caused major disruption affecting more than 25%
of the franchisee's customers in the Township for a period of more
than 10 days.
(3)
All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation. The franchisee
shall notify subscribers of all such evaluation sessions by announcement
on a local origination channel on the system between the hours of
11:00 a.m. and 9:00 p.m. for five consecutive days preceding each
session.
(4)
Topics that may be discussed at any scheduled or special
evaluation session may include, but not be limited to, system performance
and construction, franchisee compliance with this ordinance and the
franchise, customer service and complaint response, subscriber privacy,
services provided, programming offered, service rate structures, if
applicable, franchise fees, penalties, free or discounted services,
applications of new technologies, judicial and FCC filings and line
extensions.
(5)
During the review and evaluation by the Township,
the franchisee shall fully cooperate with the Township and shall provide
such information and documents as the Township may need to reasonably
perform its review.
A.
Customer service requirements. Every franchise agreement
shall require a franchisee to comply with all applicable federal,
state and local customer service requirements.
A.
Rate charge and rate schedule.
(1)
Each franchisee shall, in accordance with the
provisions of the Cable Act and the applicable FCC regulations, provide
information as to its monthly rates, installation and all other charges,
including but not limited to equipment fees, late fees and other administrative
charges, if any. The franchisee may bill in advance for monthly services
and impose reasonable late fees.
(2)
The franchisee 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 franchisee
shall give the Township Manager or his/her designee 30 days' advance
notice of any rate change.
(3)
The franchisee shall not, as to rates, charges,
services or facilities, make or grant any undue privilege or advantage
to any party nor subject any party to undue prejudice or disadvantage,
provided that the franchisee may establish reasonable classifications
of customers. In accordance with Section 623(e) of the Cable Act,
47 U.S.C. § 543(e), nothing in this ordinance prohibits
the reduction or waiver of charges in connection with temporary promotional
campaigns or providing a senior citizen discount, provided that the
same waivers are provided to all similarly situated customers. Moreover,
nothing shall prohibit the franchisee from entering into service arrangements
(with discounts and special terms) with large residential communities
or dwellings (including apartments, condominiums and other dwelling
units), hotels/motels and mobile home parks located within the Township.
B.
Local regulatory framework. The Township shall regulate
all rates and charges to the extent it is allowed to do so by law,
provided that the Township is certified to regulate rates pursuant
to the Cable Act. No rate or charge may be imposed without prior notification
to the Township except such rates and charges that the Township is
prohibited from regulating. Subject to the foregoing, any change made
without prior notification is an illegal change, and the franchisee
is prohibited from requesting or requiring a subscriber to pay an
illegal rate as a condition of providing services. The Township may
adopt such regulations, procedures and standards as it deems necessary
to implement rate regulation and may regulate rates by amendment to
this ordinance, by a separate resolution or ordinance, by amendment
to a franchise agreement or in any other lawful manner; provided,
however, that nothing contained in this section shall conflict with
the provisions of Section 623 of the Cable Act, 47 U.S.C. § 543,
and rules promulgated by the FCC thereunder.
A.
Finding. The Township finds that the streets and public
rights-of-way of the county, state and Township to be used by the
franchisee for the operation of a cable television system are valuable
public property acquired and maintained by the county, state and Township
at great expense to the taxpayers. The Township further finds that
the grant of a franchise to use the public streets and rights-of-way
is a valuable property right, without which the franchisee would be
required to invest substantial capital.
B.
Payment to Township.
(1)
The Township shall be paid a franchise fee in
an amount no less than 5% of a franchisee's gross annual receipts.
Gross receipts shall include any and all compensation and other consideration
received by the franchisee from subscribers from the sale of its services
and facilities within the limits of the Township, including the original
installation charges, reconnection charges, service charges, repair
or modifications to installations and any and all revenues from advertising
and from shopping commissions and shall also include any and all other
compensation from whatever source. In the event that the maximum amount
permitted under applicable law is greater than 5%, then the Township
reserves the right to reopen negotiations with the franchisee to address
the greater amount and any increase in the franchisee fee to the maximum
allowed by law. Increases in the franchise fee rate shall be pursuant
to approval by the Board of Commissioners and will be implemented
as soon as practical but no later than 60 days.
(2)
To the extent not inconsistent with applicable
law, the franchise fee is in addition to all other taxes and payments
that the franchisee may be required to pay under any federal, state
or local law and to any other tax, fee or assessment imposed by utilities
and cable operators for use of their services, facilities or equipment.
(3)
To the extent not inconsistent with applicable
law, payment of the franchise fee shall not be considered in the nature
of a tax.
(4)
No acceptance of any payment by the Township
shall be construed as a release or an accord and satisfaction of any
claim the Township may have for further or additional sums payable
as a franchise fee under this ordinance or for the performance of
any other obligation of the franchisee.
(5)
In the event that any franchise fee payment
or recomputation amount is not made on or before the date specified
herein, the franchisee shall pay additional compensation and interest
charges computed from such due date at an annual rate equal to the
commercial prime interest rate of the Township's primary depository
bank during the period such unpaid amount is owed.
(6)
The franchise fee and any other costs assessed
by the Township against a franchisee shall be paid quarterly to the
Township and shall commence as of the effective date of the franchise.
The Township shall be furnished at the time of each payment with a
statement certified by the franchisee's chief financial officer or
an independent certified public accountant reflecting the total amount
of quarterly gross revenues for the payment period. Quarterly payments
shall be made to the Township no later than 45 days following the
end of each calendar quarter ending the last days of the months of
March, June and September and no later than 60 days following the
end of December. The Township may require in a franchise agreement
that an annual statement of gross revenues shall be furnished to the
Township by an independent, certified public accountant and that the
franchisee shall provide an annual complete audit statement for each
calendar year within 90 days from the end of that calendar year.
(7)
The Township shall have the right to inspect
and copy the franchisee's records as is necessary to verify the accuracy
of the franchisee's franchise fee payments and other possible levied
taxes and the rights to audit and to recompute any amounts determined
to be payable under this ordinance for a period of three years from
the date of payment. Audits shall be at the expense of the Township
unless the audit discloses an underpayment of greater than 5% of the
entire amount determined to be payable for the period being audited,
in which case the costs of the audit shall be borne by the franchisee
as a cost incidental to the enforcement of the franchise. Any additional
amounts due to the Township as a result of the audit shall be paid
within 30 days following written notice to the franchisee by the Township
of the underpayment, which notice shall include a copy of the audit
report unless written notice of disagreement is filed by the franchisee
with the Township within such time period. In the case of a dispute,
the issue shall be resolved through binding arbitration in accordance
with the procedures of the American Arbitration Association.
(8)
The Township may require in a franchise agreement
that the franchisee shall maintain its fiscal and financial records
in such a manner as to enable the Board to determine the cost of assets
of the franchisee which are used in providing cable services within
the Township.
A.
Indemnification, insurance and bonding. The franchisee
shall be indemnified, insured and bonded as prescribed in the franchise
agreement.
B.
Indemnification for Cable Act claims. The franchisee
shall, at its sole cost and expense, fully indemnify, defend and hold
harmless the Township, and in its capacity as such, the officers,
agents and employees thereof, from and against any and all claims,
suits, actions, liability and judgments for damages or otherwise subject
to Section 638 of the Cable Act, 47 U.S.C. § 558, arising
out of or alleged to arise out of the installation, construction,
operation or maintenance of its system, including but not limited
to any claim against the franchisee for invasion of the right of privacy,
defamation of any person, firm or corporation or the violation or
infringement of any copyright, trademark, trade name, service mark
or patent or of any other right of any person, firm or corporation.
This indemnity does not apply to programming carried on any channel
set aside for public, educational or government use or channels leased
pursuant to 47 U.S.C. § 532 unless the franchisee was in
any respect engaged in determining the editorial content of the program
or adopts a policy of prescreening programming for the purported purpose
of banning indecent or obscene programming. Nothing herein shall prohibit
the Township from participating in the defense of any litigation by
its own counsel and obtaining indemnification for the costs associated
therewith.
C.
No limit of liability. Neither the provisions of this
section nor any damages recovered by the Township shall be construed
to limit the liability of the franchisee for damages under any franchise
issued hereunder.
A.
Security deposit. A franchise agreement may provide
that, prior to the effective date of the franchise, the franchisee
shall post with the Township a cash security deposit to be used as
a security fund to ensure the franchisee's faithful performance of
and compliance with all provisions of this ordinance, the franchise
agreement and other applicable law and compliance with all orders,
permits and directions of the Township and the payment by the franchisee
of any claims, liens, fees or taxes due the Township which arise by
reason of the construction, operation or maintenance of the system.
The amount of the security fund shall be $50,000.
B.
Surety bond. In any franchise agreement entered into
before the effective date of this ordinance, the Township and franchisee
may agree that the franchisee may, in lieu of the security fund, file
and maintain with the Township a bond with an acceptable surety in
the amount of $100,000 to indemnify the Township against any losses
it may suffer in the event the franchisee fails to comply with one
or more of the provisions of its franchise. Said bond shall be obtained
at the sole expense of the franchisee and remain in effect for the
full term of the franchise plus an additional six months thereafter.
The franchisee and its surety shall be jointly and severally liable
under the terms of the bond for any damages or loss suffered by the
Township as a result of the franchisee's nonperformance, including
the full amount of any compensation, indemnification or cost of removal
of any property of the franchisee in the event of default, and a reasonable
allowance for attorneys' fees and costs up to the full amount of the
bond. The bond shall provide for 30 days' prior written notice to
the Township of any intention on the part of the franchisee to cancel,
fail to renew or otherwise materially alter its terms. Neither the
filing of a surety bond with the Township nor the receipt of any damages
recovered by the Township thereunder shall be construed to excuse
faithful performance by the franchisee or limit the liability of the
franchisee under the terms of its franchise for damages, either to
the full amount of the bond or otherwise.
C.
Security fund in addition to all other Township rights.
The rights reserved to the Township with respect to any security fund
or an indemnity bond are in addition to all other rights of the Township,
whether reserved by this ordinance or authorized by other law or the
franchise agreement, and no action, proceeding or exercise of a right
with respect to such security fund or indemnity bond will affect any
other right the Township may have.
D.
Procedures. The franchise agreement shall provide
for the procedures to be followed with respect to drawing upon the
security fund and surety bond.
A.
Establishment of performance bond. Prior to any cable
system construction, upgrade or other work in the streets, a franchisee
shall establish in the Township's favor a performance bond in an amount
specified in the franchise agreement or other authorization as necessary
to ensure the franchisee's faithful performance of the construction,
upgrade or other work. The amount of such performance bond shall not
exceed $100,000.
B.
Recovery under performance bond. In the event that
a franchisee subject to such a performance bond fails to complete
the cable system construction, upgrade or other work in the streets
in a safe, timely and competent manner in accord with the material
provisions of the franchise agreement, there shall be recoverable,
jointly and severally from the principal and surety of the bond, any
damages or loss suffered by the Township as a result, including the
full amount of any compensation, indemnification or cost of removal
or abandonment of any property of the franchisee or the cost of completing
or repairing the system construction, upgrade or other work in the
streets, plus a reasonable allowance for attorneys' fees, up to the
full amount of the bond. The Township may also recover against the
bond any amount recoverable against the security fund or surety bond
where such amount exceeds that available under the security fund or
surety bond.
C.
The Township shall provide to the franchisee reasonable
notice and opportunity to cure. For any alleged failure, the Township
shall give written notice and the franchisee shall have 30 days to
demonstrate no failure exists, or to correct any failure or, if the
failure cannot be corrected within 30 days, submit a plan satisfactory
to the Township to correct the failure.
D.
Changes to amount of performance bond. The franchise
agreement shall specify that, upon completion of the system construction,
upgrade or other work in the streets and payment of all construction
obligations of the cable system to the satisfaction of the Township,
the Township shall eliminate the bond or reduce its amount after a
time appropriate to determine whether the work performed was satisfactory,
which time shall be established considering the nature of the work
performed. The Township may subsequently require a new bond or an
increase in the bond amount for any subsequent construction, upgrade
or other work in the streets. In any event, the total amount of the
bond shall equal 15% of the cost of the work but shall not exceed
$100,000.
E.
Qualifications of sureties. The performance bond shall
be issued by a surety with an A-1 or better rating of insurance in
Best's Key Rating Guide, Property/Casualty Edition; shall be subject
to the approval of the Township; and shall contain the following endorsement:
"This bond may not be canceled, or allowed to
lapse until 60 days after receipt by the Township, by certified mail,
return receipt requested, of written notice from the issuer of the
bond of intent to cancel or not to renew."
|
F.
Performance bond in addition to all other Township
rights. The rights reserved by the Township with respect to any performance
bond established pursuant to this ordinance are in addition to all
other rights and remedies the Township may have under this ordinance,
the franchise agreement or at law or equity.
A.
Available remedies. In addition to any other remedies
available at law or equity, the Township may apply any one or a combination
of the following remedies in the event that a franchisee violates
this ordinance, its franchise agreement or applicable state or federal
law:
(1)
Impose liquidated damages in such amount, whether
on a per diem, per incident or other measure of violation, as provided
in the franchise agreement. Payment of liquidated damages by the franchisee
will not relieve the franchisee of its obligation to comply with the
franchise agreement and the requirements of this ordinance.
(2)
Revoke the franchise pursuant to the procedures
specified in this ordinance.
(3)
In addition to or instead of any other remedy,
the Township may seek legal or equitable relief from any court of
competent jurisdiction.
(4)
Impose penalties available under state and local
law for violation of Township ordinances.
B.
Determination of appropriate remedies. In determining
which remedy or remedies are appropriate, the Township shall take
into consideration the nature of the violation, the person or persons
bearing the impact of the violation, the nature of the remedy required
in order to prevent further violations and such other matters as the
Township determines are appropriate to the public interest.
A.
Township approval required. No transfer shall occur
without prior approval of the Township.
B.
Application. An application for a transfer shall provide complete information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee and on the potential impact of the transfer on subscriber rates and service. At a minimum, the information required in § A309-4B(2) of this ordinance shall be provided with respect to the proposed transferee.
C.
Determination by Township. In making a determination
as to whether to grant, deny or grant subject to conditions an application
for a transfer of a franchise, (which determination the Township shall
make in accordance with Section 617 of the Cable Act, 47 U.S.C. § 537),
the Township shall consider the legal, financial and technical qualifications
of the transferee to operate the system; whether the incumbent cable
operator is in compliance with its franchise agreement and this ordinance
and, if not, the proposed transferee's commitment to cure such noncompliance;
whether the transferee owns or controls any other cable system in
the Township or whether operation by the transferee may eliminate
or reduce competition in the delivery of cable service in the Township;
and whether operation by the transferee or approval of the transfer
would adversely affect subscribers, the Township's interest under
this ordinance, the franchise agreement or other applicable law or
make it less likely that the future cable-related needs and interests
of the community would be satisfied at a reasonable cost. The Township
reserves the right to review the purchase price of any transfer or
assignment of a cable system. Any negotiated sale value which the
Township deems unreasonable will not be considered in the rate base
for any subsequent request for rate increases, if permitted by applicable
law.
D.
Transferee's agreement. No application for a transfer
of a franchise shall be granted unless the transferee agrees in writing
that it will abide by and accept all terms of this ordinance and the
franchise agreement and that it will assume the obligations and liabilities
known and unknown of the previous franchisee under this ordinance
and the franchise agreement.
E.
Approval does not constitute waiver. Subject to applicable
statutes of limitations, approval by the Township of a transfer of
a franchise does not constitute a waiver or release of any of the
rights of the Township under this ordinance or the franchise agreement
pertaining to a franchisee's operation of a cable system under this
ordinance or a franchise agreement and before the date of the transfer.
A.
Basis for revocation. A franchise may be revoked by the Township for a franchisee's failure to construct, operate or maintain the cable system as required by this ordinance or the franchise agreement, for defrauding or attempting to defraud the Township or subscribers, if the franchise is declared bankrupt, or for any other material violation of this ordinance or material breach of the franchise agreement. To invoke the provisions of this section, the Township shall give the franchisee written notice via certified mail of the default in its performance. If within 30 calendar days following such written notice from the Township to the franchisee the franchisee has not taken corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the Township, the Township may give written notice via certified mail to the franchisee of its intent to revoke the franchise, stating its reasons, provided that no opportunity to cure shall be provided where the franchisee has defrauded or attempted to defraud the Township or its subscribers or in the event that the franchisee is declared bankrupt. In the case of a fraud or attempted fraud, the franchise may be revoked after the hearing required under § A309-17B; revocation for bankruptcy shall be governed by § A309-17C.
B.
Procedure. Prior to revoking a franchise, the Township
shall hold a public hearing, upon 30 calendar days' notice, at which
time the franchisee and the public shall be given an opportunity to
be heard. Following the public hearing, the Township may determine
whether to revoke the franchise based on the information presented
at the hearing and other information of record. If the Township determines
to revoke a franchise, it shall issue a written decision setting forth
the reasons for its decision. A copy of such decision shall be transmitted
to the franchisee.
C.
Revocation after bankruptcy. Any franchise may, at
the option of the Township following a public hearing before the Board
of Commissioners, be revoked 120 calendar days after an assignment
for the benefit of creditors or the appointment of a receiver or trustee
to take over the business of the franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors
or other action or proceeding, unless within that one-hundred-twenty-day
period:
(1)
Such assignment, receivership or trusteeship
has been vacated; or
(2)
Such assignee, receiver or trustee has fully complied with the terms and conditions of this ordinance and the franchise agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this ordinance and the franchise agreement and such other conditions as may be established or as are required pursuant to § A309-16.
D.
Revocation after foreclosure. In the event of foreclosure
or other judicial sale of any of the facilities, equipment or property
of a franchisee, the Township may revoke the franchise, following
a public hearing before the Township, by serving notice on the franchisee
and the successful bidder at the sale, in which event the franchise
and all rights and privileges of the franchise will be revoked and
will terminate 30 calendar days after serving such notice, unless:
(1)
The Township has approved the transfer of the
franchise to the successful bidder; and
E.
Rights on revocation. If the Township revokes a franchise
or if for any other reason a franchisee abandons, terminates or fails
to operate or maintain service to its subscribers, the following procedures
and rights are effective:
(1)
The Township may require the former franchisee
to remove its facilities and equipment at the former franchisee's
expense. If the former franchisee fails to do so within a reasonable
period of time, the Township may have the removal done at the former
franchisee's and/or surety's expense.
(2)
In the event of revocation, the Township, by
resolution, may acquire ownership of the cable system at an equitable
price.
(3)
If a cable system is abandoned by a franchisee
or the franchisee fails to operate or maintain service to its subscribers
or otherwise terminates the franchise, the ownership of all portions
of the cable system in public rights-of-way shall revert to the Township
and the Township may sell, assign or transfer all or part of the assets
of the system.
A.
Discriminatory practices prohibited. The franchisee
shall not deny service, deny access or otherwise discriminate against
subscribers, programmers or residents of the Township on the basis
of race, color, religion, national origin, sex or age. Notwithstanding
the foregoing, the franchisee may offer price discounts to senior
citizens. Moreover, nothing shall prohibit the franchisee from entering
into service agreements (with discounts and special terms) with apartments,
condominiums and other dwelling units, hotels/motels and mobile home
parks located within the Township. The franchisee shall comply at
all times with all applicable federal, state and Township laws and
all executive and administrative orders relating to nondiscrimination.
B.
Equal employment opportunity. A franchisee shall not
refuse to employ, discharge from employment or discriminate against
any person in compensation or in terms, conditions or privileges of
employment because of race, color, religion, national origin, sex
or age. The franchisee shall comply with federal, state and local
laws and regulations governing equal employment opportunities as the
same may be from time to time amended.
C.
Subscriber privacy. A franchisee shall at all times
protect the privacy of all subscribers pursuant to the provisions
of Section 631 of the Cable Act, 47 U.S.C. § 551. A franchisee
shall not condition subscriber service on the subscriber's grant of
permission to disclose information which, pursuant to federal or state
law, cannot be disclosed without the subscriber's explicit consent.
A.
Compliance with laws. The franchisee and the Township
shall comply with all applicable federal, state and Township laws
and regulations as they become effective, unless otherwise stated.
B.
Severability. If any term, condition or provision
of this ordinance shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision which had been held invalid is no longer
invalid, said provision shall thereupon return to full force and effect
without further action by the Township and shall thereafter be binding
on the franchisee and the Township.
C.
Emergency use. Upon request of the Township, the franchisee
shall, at its sole expense, make available systems and related facilities
to the Township for use during any emergency or disaster.
D.
Captions. Captions and headings of this ordinance
are for convenience and reference purposes only and shall not affect
in any way the meaning and interpretation of any provisions of this
ordinance.
E.
Calculation of time. Unless otherwise indicated, when
the performance or doing of any act, duty, matter, payment or thing
is required hereunder and a period of time or duration for the fulfillment
of doing thereof is prescribed and is fixed herein, the time shall
be computed so as to exclude the first and include the last day of
the prescribed or fixed period of time. When the last day of the period
falls on a Saturday, Sunday or a legal holiday, that day shall be
omitted from the computation.
A.
Publication; effective date. All franchises shall
be signed by the President of the Board and attested to by the Township
Manager. The franchise shall be published in accordance with the requirements
of the Township and state law and shall take effect after it has been
accepted by the franchisee and the franchisee and the Township have
signed a franchise agreement and satisfied all conditions precedent
set forth therein.
B.
Franchisee bound. Upon acceptance of a franchise,
the franchisee shall be bound by all terms and conditions contained
herein, in the franchise agreement and in its application to the extent
incorporated in the franchise agreement.
[Adopted 3-8-2007 by Ord. No. 719]
The Township hereby grants Verizon a nonexclusive
cable franchise subject to and in accordance with the terms and conditions
of the Cable Franchise Agreement between the Township and Verizon,
including, without limitation, each and all of the side letters attached
thereto (collectively the "Verizon Franchise Agreement"). A copy of
the Verizon Franchise Agreement and related side letter agreements
are attached hereto and made a part hereof as Exhibits A, B and C.[1]
[1]
Editor's Note: Said exhibits are on file in
the Township offices.
In the event of any conflict between the terms
of the Cable Ordinance[1] and this ordinance, the terms of this Ordinance shall
be controlling.
Nothing in this ordinance, including the Verizon
Franchise Agreement, shall alter the terms of any other franchise,
franchise agreement or franchise license previously granted by the
Township pursuant to the Cable Ordinance, each of which shall remain
in effect according to their particular terms and conditions.
If any section, subsection, sentence, clause,
phrase or word of this ordinance is for any reason held invalid or
unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision, and
such holding shall not render this ordinance invalid.