[HISTORY: Adopted by the Borough Council of the Borough of Pen Argyl
as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-6-1969 by Ord. No. 355;
approved 10-6-1969]
For the purpose of this ordinance unless otherwise expressly used, the
following terms shall have the meanings herein respectively indicated:
The Borough of Pen Argyl.
The franchised person, Blue Mountain Cablevision Company with principal
place of business at Pen Argyl, Pennsylvania, which is the grantee of the
rights under this franchise.
The Council of the Borough of Pen Argyl.
Monetary charges of any character whatever, including donations,
contributions or dues or membership fee (periodical or otherwise), charged
or paid or in any manner received, as herein provided, from the general public,
directly or indirectly, for the privilege of receiving any television signal
or electronic impulse which is transmitted through cables or wires or a system
of cables or wires which pass on, over and along the streets, alleys and public
ways within the Borough. "Gross receipts" shall include monthly service charges
but shall not include moneys received as installation charges, charges for
reconnections, repairs or modifications of any installations and state and
federal taxes relating thereto.
Any person, firm, partnership, association, corporation, company
or organization of any kind.
Any street, alley, public way and public place as now laid out, whether
opened or unopened, dedicated to public use, and all extensions or additions
thereof as may now or hereinafter be made.
It is hereby granted to Blue Mountain Cablevision Company from the acceptance
of this ordinance, as hereinafter prescribed, all right and authority to construct,
erect, operate and maintain buildings, cables, wirings, machinery and transmission
apparatus within the Borough limits of the Borough of Pen Argyl, as it now
is and as it hereafter may be constituted by revision, modification or addition,
and which said buildings, cables, wirings, machinery and transmission apparatus
may or shall become necessary in the reception and distribution of television
and radio signals and other electronic impulses for the use of the citizens
of the Borough of Pen Argyl (which overall system is hereinafter sometimes
called "system"), on, over or along or under (by way of underground conduit)
the streets of the Borough, and also to repair, replace and extend the same
and to do all other manner of things necessary or incidental to such business,
subject always to the rules, conditions and provisions of this ordinance and
the rules, regulations and statutes, as the same may be amended from time
to time, of the Federal Communications Commission and other regulatory bodies
of the Borough of Pen Argyl or the State of Pennsylvania or the United States
of America, and subject at all time to the applicable law of the Borough of
Pen Argyl, State of Pennsylvania and of the United States of America. The
said system, referred to hereinabove, shall originate from a tower receiver
located within a two-mile radius from the present Town Hall Building of the
Borough of Pen Argyl.
All such installations required for the system shall comply with the
safety and construction standards of the National Electrical Safety Code and
National Electrical Code of the National Board of Fire Underwriters.
There is hereby further granted to the company the right, privilege
and authority to lease, rent or in any other legal manner obtain the use of
towers, poles, lines, cables and other equipment and facilities from any and
all holders of public licenses and franchises within the corporate limits
of the Borough of Pen Argyl, including the Bell Telephone Company and the
Metropolitan Edison Company, and to use such towers, poles, lines, cables
and other equipment and facilities, subject to all existing and future ordinances
and regulations of the Borough. To the extent possible, the poles used for
the company's CATV system shall be those erected and maintained by the Bell
Telephone Company or the Metropolitan Edison Company, when and where practicable,
provided mutually satisfactory rental agreements can be entered into with
said companies. It is the stated intention of the Borough of Pen Argyl that
all other holders of public licenses and franchises within the corporate limits
of the Borough, including the Bell Telephone Company and the Metropolitan
Edison Company, shall cooperate with the company to allow the company's joint
usage of their poles and pole-line facilities whenever possible or wherever
such usage does not interfere with the normal operation of said poles and
pole lines so that the number of new or additional poles constructed by the
company within the Borough may be minimized.
Nothing herein, however, shall be interpreted as meaning that the Borough
of Pen Argyl conveys or gives to the company the right to use the poles or
facilities of the Metropolitan Edison Company or Bell Telephone Company, or
the property of any utility, railroad or private corporation, partnership
or individual, without first obtaining permission from said parties.
All rights granted to the company hereunder shall be nonexclusive and shall exist for a term of 20 years after the effective date of this ordinance; provided, however, that if construction of the system authorized hereunder is not begun within 60 days or service made available in at least 30% of the Borough within 210 days of the effective date of this ordinance, then the provisions of this ordinance shall be null and void at the option of Council. At the expiration of the term granted hereinabove or any extension thereof, should the Borough not elect to exercise its rights contained in § A113-19 hereinafter, the franchise granted herein shall be automatically extended for an additional term of not less than five years, and each extension thereafter shall be for a term of not less than five years.
The company's transmission and distribution system, poles, wires and
appurtenances shall be located, erected and maintained so as not to endanger
or interfere with the lives of persons or to interfere with new improvements
the Borough may deem proper to make, or to unnecessarily hinder or obstruct
the free use of the streets, alleys, bridges or other public property; removal
of poles to avoid such interference will be at the company's expense.
A.Â
All installations of equipment shall be of permanent
nature, durable and installed in accordance with good engineering practices,
and of sufficient height to comply with all existing Borough regulations,
ordinances and state laws so as not to interfere in any manner with the right
of the public or individual property owner, and shall not interfere with the
travel and use of public places by the public, and during the construction,
repair or removal thereof, shall not obstruct or impede traffic.
B.Â
No poles, cables, equipment or wires shall be installed
or the installation thereof commenced until the proposed location of such
poles, cables, equipment and wires shall have been set forth upon a plat or
map showing the streets, alleys or highways within the Borough of Pen Argyl
whereon such installations are proposed and submitted to Council for approval
by it or its designated official.
C.Â
In the event that a change is made in the grade of public
streets, alleys, avenues and grounds by authority of the Borough, which shall
necessitate the removal of any poles, wires, transmission and distribution
lines to conform to the change of grade, the company shall make the necessary
changes in its lines at its own expense upon due notice from said Council
or said designated official to do so.
D.Â
In the installation and maintenance of its cables, equipment,
wires and poles, the company shall not interfere with the public use of any
street, alley or highway more than necessary to enable the company to perform
the necessary installation and maintenance work with proper economy and efficiency.
When necessary in order not to interfere unduly with traffic and the rights
of the traveling public, Council or its designated official may determine
the hours within which such work shall be performed and fix a time within
which such work shall be completed.
E.Â
All work in any way necessitated by the business of the
company which may involve the opening, breaking up or tearing up of a portion
of a street, sidewalk or other part of any Borough-owned or Borough-controlled
property shall, at the option of the Borough, be done by the Borough at the
expense of the company.
F.Â
The said company shall maintain all poles, equipment,
cables and wires erected or constructed under the provisions of this ordinance
in good and safe order and condition and shall at all times fully indemnify,
protect and save harmless the said Borough of Pen Argyl from and against all
actions, claims, suits, damages and charges and against all loss and necessary
expenditures arising from the erection, construction and maintenance of the
said works in good and safe order and condition. In the event that the permission
granted by this ordinance should be revoked by the said Borough of Pen Argyl,
or in the event that the said company should fail or refuse to comply at any
time with the terms and conditions of this ordinance, or in the event that
the business of said company should be discontinued, voluntarily or involuntarily,
then and in any of said events the said company shall, at its own cost and
expense, remove its said poles, cables and wires erected or constructed under
the provisions of this ordinance.
A.Â
The company and its employees shall not engage in the
business of selling or servicing television receivers or parts thereof in
the area served by the system.
B.Â
The company shall install or maintain the system in such
manner as not to interfere with television reception by use of individual
antennas presently in existence or which may hereafter be installed.
C.Â
During the term of the franchise given hereunder and
any extensions thereof, the company shall not sell, assign or transfer this
franchise to any other person without first giving the Borough the irrevocable
right, privilege and option to purchase same for the same price and upon the
same terms contained in a firm offer received by the company from another
person. Notification of receipt by the company of such a firm offer shall
be given by the company to the Borough in writing, together with a copy of
said offer, and the Borough shall have 60 days after receipt of said notice,
not counting the day of receiving the same, within which to notify the company
of the exercise of its option, and within 30 days thereafter the company and
the Borough shall enter into an agreement in writing for the sale, assignment
or transfer of same in accordance with the same price and other terms contained
in said firm offer.
The company shall, at its expense, protect, support, temporarily disconnect,
relocate on the same street, alley or public place or remove from the street,
alley or public place any property of the company when required by the Borough
by reason of the traffic conditions, public safety, street vacation, freeway
and street construction, change or establishment of street grade, installation
of sewers, drains, water pipes, power lines, signal lines and tracks or any
other types of structures or improvements by governmental agencies when acting
in a governmental or proprietary capacity, or other structures or public improvement;
provided, however, that the company shall in all cases have the privilege
and be subject to the obligations to abandon any property of the company in
place, as provided hereinafter.
The company shall grant to the Borough, free of expense, joint use of
any and all poles owned by it for any proper municipal purpose insofar as
it may be done without interfering with the free use and enjoyment of the
company' own wires and fixtures, and the Borough shall hold the company harmless
from any and all actions, causes of actions or damage caused by the placing
of the Borough's wires or appurtenances upon the poles of the company.
The company shall provide service of the system without any installation,
monthly service charge or any charge whatsoever to all public and parochial
schools, public libraries, municipal buildings, police and fire stations within
the area to be served by its system under this ordinance.
The company shall, at all time, keep in effect the following types of
minimum insurance coverage:
A.Â
Workmen's compensation upon its employees engaged in
any manner in the installation or servicing of its plant and equipment within
the Borough of Pen Argyl.
B.Â
Property damage liability insurance to the extent of
$50,000 per accident with up to $200,000, and personal injury liability insurance
to the extent of $200,000 for injury or death to any one person and $400,000
as to any one accident. This insurance shall be placed with a good and reliable
company, and proof of insurance shall be submitted to the Borough at the time
of acceptance of this ordinance by the company and periodically thereafter
as often as such policy or policies shall be replaced or reissued. The company
shall indemnify, protect and save harmless the Borough from and against losses
and physical damages to property or bodily injury or death to persons, including
payments made under any workmen's compensation law, which may arise out of
or be caused by the erection, maintenance, presence, use or removal of said
attachments or pole or poles within the Borough or by any act of the company,
its agents or employees. The company shall carry insurance in the above-described
minimum amounts to protect the parties hereto from and against all claims,
damages, actions, judgments, costs, expenses and liabilities which may arise
or result, directly or indirectly, from or by reason of such loss, injury
or damage. All insurance required shall be and remain in full force and effect
for the entire life of the rights granted hereunder.
During the term of the rights granted hereunder and so long as the company
operates said system, the company shall pay to the Borough, at the time hereinafter
specified, a sum equal to 3% of its annual gross receipts from the CATV system
for the first year of operation, 4% of its annual gross receipts for the second
year, and 5% of its annual gross receipts for the remaining term of the franchise
granted herein or extensions thereof. Such payments by the company to the
Borough shall be in lieu of any occupation tax, license tax or similar levy
and shall be paid on a yearly basis, not later than the 31st of January after
each calendar year of operation during the franchise term or extensions thereof.
Delinquent payments shall bear interest at the rate of 6% per annum. The company
shall maintain an accurate record of such gross receipts earnings and it shall
submit to the Borough within 30 days after the expiration of any calendar
year during the term of the rights granted hereunder, a statement prepared
by a certified public accountant showing the gross receipts as defined herein.
Rates charged by the company for service hereunder shall be fair and
reasonable and designed to meet all necessary costs of the service, including
a fair rate of return on the net valuation of its property devoted thereto,
under efficient and economical management. The company agrees that it shall
be subject to all authority now or hereafter possessed by the Borough, or
any other regulatory body having competent jurisdiction, to fix just, reasonable
and compensatory television signal distribution rates. All rates to be charged
by the company shall first be approved by the Borough, and all rates so approved
by the Borough shall remain in effect until approval is given by the Borough
for a change or modification of such rates in accordance with the general
standards set forth in this section. If during the term of the franchise granted
under this ordinance the company receives refunds, or if the cost to the company
of receiving the television signal which it relays is reduced, by order of
any regulatory body having competent jurisdiction, the company shall pass
on to its customers such refunds or any savings resulting from such reduced
costs.
The Borough shall have the right to supervise all construction or installation
work performed subject to the provisions of this ordinance and to make such
inspection as it shall find necessary to ensure compliance with governing
ordinances.
Within 30 days from the effective date of this ordinance, the company
shall file an acceptance of this ordinance and furnish a bond to the Borough
in the amount of $10,000, in such form and with such sureties as shall be
acceptable to the Borough, guaranteeing the faithful performance of all of
the obligations of the company under the terms of this ordinance, and said
bond or renewals thereof shall ensure performance for each year of the franchise
term and any extensions thereof. And within the time aforesaid, the company
and the Borough shall execute a separate agreement consistent with this ordinance
and containing the initial schedule of uniform tariffs setting forth all charges
to be made to the company's subscribers.
The company is subject to all requirements of the Borough ordinances,
rules and regulations and specifications of the Borough heretofore or hereafter
enacted or established, including but not limited to those concerning street
work, street excavation, use, removal and relocation of property within a
street and other street work.
In the event that the use of any part of the system installed is discontinued
for any reason by the company for a continuous period of six months, causing
a cessation of service to subscribers of the system, or in the event such
system or property has been installed in any street or public place without
complying with requirements of this ordinance, the company shall remove from
the streets and public places all such parts of the system other than any
which the Borough may request to be abandoned in place. In the event of any
such removal, the company shall restore the property and area from which such
removal occurred to a condition satisfactory to the Borough. Any property
of the company requested to be abandoned in place by the Borough as a result
of discontinuance of service set forth above shall be abandoned in such manner
as the Borough may prescribe, and the company shall submit to the Borough
an instrument acceptable to the Borough transferring to the Borough ownership
of such property.
At the end of the term of the franchise given hereunder or at five-year
intervals during any extension of the original term hereunder, the Borough,
at its election, shall have the right to terminate the franchise of the company
granted herein and to purchase and take possession of all the property and
assets of the company connected with the system; and should the Borough so
elect, the company shall then sell and convey the same to the Borough upon
the Borough's paying a just and fair compensation therefor, which compensation,
if the parties cannot agree within six months after the date of notice of
the election by the Borough, shall be determined by an Arbitration Board to
be composed of three disinterested members, one appointed by the company,
one by the Borough and the third by the other two members, and the decision
of the Board shall be final and binding. Notice of election by the Borough
shall be given to the company at least one year prior to the termination of
the original term or prior to the expiration of any five-year extension thereof,
in writing, by registered mail to the office of the company situate in Pen
Argyl.
Should the company fail to comply with any of the terms of the ordinance, then, in addition to any other rights of the Borough given herein, the Borough shall give written notice to the company of such failure to comply, and if such failure to comply has not been rectified within 30 days of the receipt by the company of such written notice, the Borough shall have, at its option, the right to revoke the franchise granted to the company in this ordinance. Should the Borough so elect to revoke the franchise, it shall have the right to purchase and take possession of all the property and assets of the company connected with the system in the manner provided for purchase in § A113-19 herein; provided that the election to purchase by the Borough upon revocation shall be made at the same time notice of revocation is given to the company, in writing, by registered mail, and this notice shall satisfy all notice requirements set forth in § A113-19. Should the Borough elect to revoke the franchise but not to exercise its right to purchase the system as provided hereinabove, then the company shall have 90 days within which to sell, transfer and assign its system and the franchise granted herein to another company, not connected, directly or indirectly, to Blue Mountain Cablevision Company or its principal stockholders. Should the company fail to effectuate such sale within the period provided, then and in that event all rights given to the company herein shall be revoked and forfeited immediately and the company shall, by proper instruments, assign, transfer and convey the system to the Borough, which, together with the performance bond, shall serve as liquidated damages for breach by the company of the provisions hereof.
The company shall pay to the Borough a sum of money sufficient to reimburse
it for all expenses incurred by it in connection with the preparation, publication
and passage of this ordinance and the rights granted to the company hereunder.
Such payment shall be made by the company to the Borough within 30 days after
the Borough shall furnish the company with a written statement of such expense.
If any sentence, clause or sectional part of this ordinance is for any
reason found to be unconstitutional, illegal or invalid, such unconstitutionality,
illegality or invalidity shall not affect or impair any of the remaining provisions,
sentences, clauses or sections or parts of this ordinance. It is hereby declared
the intent of the Borough Council that this ordinance would have been adopted
had such unconstitutional, illegal or invalid sentence, clause, section or
part thereof not been included herein.
[Adopted 7-2-1991 by Ord. No. 489,
approved 7-2-1991[1]]
[1]
Editor's Note: This ordinance superseded former Art. II, Twin County
Trans-Video, Inc., Franchise, adopted 9-5-1972 by Ord. No. 365.
This ordinance shall be known and may be cited as the "Twin County Trans-Video,
Inc., Franchise Ordinance."
A.Â
For the purpose of this ordinance, the following terms,
phrases, words and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present tense include
the future, words in the plural number include the singular number, and words
in the singular number include the plural number. The word "shall" is always
mandatory and not merely directory.
B.Â
BASIC CABLE SERVICE
BOROUGH
CABLE CHANNEL or CHANNEL
CABLE OPERATOR
CABLE SERVICE
CABLE SYSTEM
(1)Â
(2)Â
(3)Â
(4)Â
FRANCHISE
FRANCHISING AUTHORITY
GROSS SUBSCRIBER REVENUES
PERSON
SERVICE TIER
STATE
VIDEO PROGRAMMING
The following terms shall have the meanings indicated:
Any service tier which includes the retransmission of local television
broadcast signals.
The Borough of Pen Argyl, in the County of Northampton and Commonwealth
of Pennsylvania.
A portion of the electromagnetic frequency spectrum which is used
in a cable system and which is capable of delivering a television channel
(as "television channel" is defined by the Commission by regulation).
Any person or group of persons who or which:
A facility consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable service, which includes video programming and which is provided to multiple
subscribers within a community, but such term does not include:
A facility that serves only to retransmit the television signals of
one or more television broadcast stations.
A facility that serves only subscribers in one or more multiple-unit
dwellings under common ownership, control or management, unless such facility
or facilities uses any public right-of-way.
A facility of a common carrier which is subject, in whole or in part,
to the provisions of Title II of the Communications Act of 1984, except that
such facility shall be considered a cable system to the extent that such facility
is used in the transmission of video programming directly to subscribers.
Any facilities of any electric utility used solely for operating its
electric utility systems.
An initial authorization or renewal thereof, including a renewal of an authorization which has been granted subject to § A113-33, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of a cable system.
The Borough of Pen Argyl.
Those revenues received by the company for monetary shares of any
character whatsoever, including donations, contributions, dues, membership
fees or service charges, whether periodical or otherwise, charged or paid
in any manner from and by the general public, directly or indirectly, for
the privilege of receiving any television signal or electronic impulse which
is transmitted through the cables or wires of the cable system owned, operated
and maintained by Twin County Trans-Video Company, Inc., its successors and
assigns which pass on, over, under or along the streets, alleys and public
ways of the Borough and which are paid by the subscribers/residents located
within said Borough.
An individual, partnership, association, joint-stock company, trust,
corporation or governmental entity.
A category of cable service or other services provided by a cable
operator and for which a separate rate is charged by the cable operator.
Any state or political subdivision or agency thereof.
Programming provided by or generally considered comparable to programming
provided by a television broadcast station.
A.Â
This ordinance shall be construed to grant the construction
of a cable system over public rights-of-way and through easements which are
within the area to be served by the cable system and which have been dedicated
for compatible uses, except that in using such easements the cable operator
shall ensure that:
(1)Â
The safety, functioning and appearance of the property
and the convenience and safety of other persons not be adversely affected
by the installation or construction of facilities necessary for a cable system;
(2)Â
The cost of the installation, construction, operation
or removal of such facilities is borne by the cable operator or subscriber,
or a combination of both; and
(3)Â
The owner of the property is justly compensated by the
cable operator for any damages caused by the installation, construction, operation
or removal of such facilities by the cable operator.
B.Â
In case of any disturbance of pavement, sidewalk, lawn,
driveway or other surfacing, the company shall, at its own cost and expense,
in a manner approved by the Borough, replace and restore all such surfaces
in as good a condition as existed before said work was commenced.
C.Â
Prior to commencing a phase of construction, the company
shall submit documentation to the Borough Engineer clearly setting forth the
work to be accomplished during the proposed construction phase and the precautions
to be taken to ensure that property damage during installation is minimized.
Construction shall not be permitted unless the Borough Engineer approves the
construction application. If the Borough Engineer disapproves the proposal,
then the company shall address the concerns raised by the Borough Engineer
and resubmit the required documentation.
D.Â
In the event that the Borough Engineer determines that the cable operator has not complied with the requirements of Subsection A or B above or of any other provisions of this ordinance related to the construction of the cable system, the Borough Engineer is authorized to give written notice to Twin County Trans-Video, Inc., to cease and desist from any further construction until said violations are corrected.
Twin County Trans-Video, Inc., shall periodically, upon request by the
Borough of Pen Argyl, provide evidence that access to cable service is not
being denied to any group of potential cable subscribers because of the income
of the residents of the local area in which such group resides.
Cable service shall not be provided within the Borough of Pen Argyl
without the enactment of the Franchise Ordinance.
Twin County Trans-Video, Inc., shall pay a franchise fee of 5% of its
gross subscriber revenues derived during each twelve-month period of the operation
of its cable system. For the purposes of the franchise fee, each twelve-month
period shall be on a calendar basis, beginning January 1 of each year and
ending December 31. The franchise fee of 5% may be increased by subsequent
resolution of the Borough, subject to Federal Communications Commission (FCC)
regulations governing the same.
A.Â
The term "franchise fee" includes any tax, fee or assessment
of any kind imposed by a franchising authority or other governmental entity
on a cable operator or cable subscriber, or both, solely because of his status
as such.
B.Â
The term "franchise fee" does not include:
(1)Â
Any tax, fee or assessment of general applicability,
including any such tax, fee or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee or assessment which
is unduly discriminatory against cable operators or cable subscribers.
(2)Â
In the case of any franchise in effect on the date of
the enactment of this ordinance, payments which are required by the franchise
to be made by the cable operator during the term of such franchise for or
in support of the use of public, educational or governmental access facilities.
(3)Â
Requirements or charges incidental to the awarding or
enforcing of the franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties or liquidated damages.
(4)Â
Any fee imposed under Title 17 of the United States Code.
C.Â
The annual payment of the franchise fee shall occur no
later than the 31st day of January after each calendar year of operation during
the franchise term and any extensions thereof. Delinquent payments shall bear
interest at the rate of 10% per annum.
D.Â
At the time of the annual payment of the franchise fee,
the company shall furnish the Borough with:
The company shall provide, upon request and without charge, basic cable
service to any municipal buildings owned and operated by the Borough and to
any public or parochial schools located within the Borough by providing an
energized cable to such buildings for basic cable service. The cost of any
internal wiring shall be borne by the requesting institution. If the Borough
fire alarms or emergency communications system can make use of the cable system
without interference with the cable operator's usage, such use shall be permitted
free of charge.
The regulation promulgated by the Federal Communications Commission
or other similar body relating to the Communications Act of 1984, as amended,
are incorporated herein by reference as they relate to regulation of rates
for the provision of basic cable service and circumstances in which a cable
system which is not subject to effective competition. Any periodic review
and revision of said regulations shall be automatically incorporated into
the terms of this ordinance.
The Borough of Pen Argyl, to the extent related to the establishment
or operation of a cable system:
A.Â
May establish requirements for facilities and equipment,
but may not establish requirements for video programming or other information
services; and
The Borough of Pen Argyl retains the right in the grant of this nonexclusive
franchise to prohibit the franchisee from providing cable services which are
obscene or otherwise unprotected by the Constitution of the United States.
The franchisee shall make available, upon the request of a subscriber, either
by sale or lease, the device by which the subscriber can prohibit viewing
of a particular cable service during periods selected by that subscriber.
A.Â
During the six-month period, which begins with the 36th
month before the expiration of this franchise, the Borough of Pen Argyl may,
on its own initiative, and shall at the request of the cable operator, commence
proceedings which afford the public in the franchise area appropriate notice
and participation for the purposes of:
B.Â
Proposals.
(1)Â
Upon completion of a proceeding under Subsection A above a cable operator seeking renewal of a franchise may, on its own initiative or at the request of a franchising authority, submit a proposal for renewal.
(2)Â
Such proposal shall contain such material as the franchising
authority may require, including proposals for an upgrade of the cable system.
(3)Â
The franchising authority may establish a date by which
such proposal shall be submitted.
C.Â
Grant of renewal or denial and proceedings.
(1)Â
Upon submission by a cable operator of a proposal to the franchising authority for the renewal of a franchise, the franchising authority shall provide prompt public notice of such proposal and, during the four-month period which begins on the completion of any proceedings under Subsection A above, renew the franchise or issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative commence an administrative proceeding, after providing prompt public notice of such proceeding, in accordance with Subsection C(2) below to consider whether:
(a)Â
The cable operator has substantially complied with the
material terms of the existing franchise and with applicable law;
(b)Â
The quality of the operator's service, including signal
quality, response to consumer complaints and billing practices, but without
regard to the mix, quality or level of cable services provided over the system,
has been reasonable in light of community needs;
(c)Â
The operator has the financial, legal and technical ability
to provide the services, facilities and equipment as set forth in the operator's
proposal; and
(d)Â
The operator's proposal is reasonable to meet the future
cable-related community needs and interest, taking into account the cost of
meeting such needs and interest.
(2)Â
In any proceeding under Subsection C(1), the cable operator shall be afforded adequate notice and the cable operator and the franchise authority, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding under Subsection A above), to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding at the cost of the applicant.
(3)Â
At the completion of a proceeding under this subsection,
the franchising authority shall issue a written decision granting or denying
the proposal for renewal based upon the record of such proceeding and transmit
a copy of such decision to the cable operator. Such decision shall state the
reasons therefor.
D.Â
Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in Subsection C(1)(a) through (d) above, pursuant to the record of the proceeding under Subsection C. A franchising authority may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under Subsection C(1)(a) or on events considered under Subsection C(1)(b) in any case in which a violation of the franchise or the events considered under Subsection C(1)(b) occur after the effective date of this ordinance, unless the franchising authority has provided the operator with notice and the opportunity to cure or in any case in which it is documented that the franchising authority has waived its right to object or has effectively acquiesced.
E.Â
Appeals.
(1)Â
Any cable operator whose proposal for renewal has been
denied by a final decision of a franchising authority made pursuant to this
section or has been adversely affected by a failure of the franchising authority
to act in accordance with the procedural requirements of this section may
appeal such final decision or failure to act.
(2)Â
The court shall grant appropriate relief if the court
finds that:
(a)Â
Any action of the franchising authority is not in compliance
with the procedural requirements of this section; or
(b)Â
In the event of a final decision of the franchising authority denying the renewal proposal, the operator has demonstrated that the adverse finding of the franchising authority with respect to each of the factors described in Subsection C(1)(a) through (d) above on which the denial is based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under Subsection C.
F.Â
Any decision of a franchising authority on a proposal
for renewal shall not be considered final unless all administrative review
by the state has occurred or the opportunity therefor has lapsed.
G.Â
For purposes of this section, the term "franchise expiration"
means the date of the expiration of the term of the franchise.
H.Â
Notwithstanding the provisions of Subsections A through G of this section, a cable operator may submit a proposal for renewal of a franchise pursuant to this section at any time, and a franchising authority may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time.
A.Â
If a renewal of a franchise held by a cable operator
is denied and the franchising authority acquires ownership of the cable system
or effects a transfer of ownership of the system to another person, any such
acquisition or transfer shall be at fair market value, determined on the basis
of the cable system valued as a going concern but with no value allocated
to the franchise itself.
B.Â
If a franchise held by a cable operator is revoked for
cause and the franchising authority acquires ownership of the cable system
or effects a transfer of ownership of the system to another person, any such
acquisition or transfer shall be at an equitable price.
A.Â
Notice and definition.
(1)Â
Notice.
(a)Â
At the time of entering into an agreement to provide
any cable service or other service to a subscriber and at least once a year
thereafter, a cable operator shall provide notice, in the form of a separate,
written statement, to such subscriber which clearly and conspicuously informs
the subscriber of:
[1]Â
The nature of personally identifiable information collected
or to be collected with respect to the subscriber and the nature of the use
of such information;
[2]Â
The nature, frequency and purpose of any disclosure which
may be made of such information, including an identification of the types
of person to whom the disclosure may be made;
[3]Â
The period during which such information will be maintained
by the cable operator;
(b)Â
In the case of subscribers who have entered into such
an agreement before the effective date of this section, such notice shall
be provided within 180 days of such date and at least once a year thereafter.
(2)Â
For purposes of this section, the term "personally identifiable
information" does not include any record of aggregate data which does not
identify particular persons.
B.Â
C.Â
Disclosure of personally identifiable information.
(1)Â
Except as provided in Subsection C(2) below, a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.
(2)Â
A cable operator may disclose such information if the
disclosure is:
(a)Â
Necessary to render or conduct a legitimate business
actively related to a cable service or other service provided by the cable
operator to the subscriber;
(b)Â
Subject to Subsection H, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed; or
D.Â
A cable subscriber shall be provided access to all personally
identifiable information regarding that subscriber which is collected and
maintained by a cable operator. Such information shall be made available to
the subscriber at reasonable times and at a convenient place designated by
such cable operator. A cable subscriber shall be provided reasonable opportunity
to correct any error in such information.
E.Â
A cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under Subsection D or pursuant to a court order.
F.Â
G.Â
Nothing in this ordinance shall be construed to prohibit
any state or any franchising authority from enacting or enforcing laws consistent
with this section for the protection of subscriber privacy.
H.Â
A governmental entity may obtain personally identifiable
information concerning a cable subscriber pursuant to a court order only if,
in the court proceeding relevant to such court order:
(1)Â
Such entity offers clear and convincing evidence that
the subject of the information is reasonably suspected of engaging in criminal
activity and that the information sought would be material evidence in the
case; and
(2)Â
The subject of the information is afforded the opportunity
to appear and contest such entity's claim.
C.Â
Nothing herein shall be construed to prohibit any state
or any franchising authority from enacting or enforcing any consumer protection
law.
D.Â
Twin County Trans-Video, Inc., shall construct its cable
system so as to be able to service all residents of the Borough. If the company
fails to complete the cable system construction to service all residents of
the Borough within 18 months of the enactment of this franchise agreement,
this shall constitute a violation of the franchise grant. The company agrees
to pay as liquidated damages the sum of $25 per day for each day such violation
shall continue, as determined by the Borough. This penalty shall be paid to
the Borough within 30 days of receipt of written notice from the Borough assessing
the liquidated damages accrued to date.
Whoever transmits over any cable system any matter which is obscene
or otherwise unprotected by the Constitution of the United States shall be
fined not more than $10,000 or imprisoned not more than two years, or both,
as provided in the Act of October 30, 1984, P.L. 98-549, 47 U.S.C. § 558.
The nonexclusive franchise granted the company herein shall terminate
10 years from the date of this franchise grant, subject to renewal on such
terms and conditions as may be lawfully specified by the Borough of Pen Argyl
and as are consistent with applicable FCC rules and regulation. If construction
of the system authorized by this nonexclusive franchise agreement is not begun
within 60 days or service is not available to at least 30% of the Borough
within 210 days of the effective date of this ordinance, then the provisions
of this ordinance shall be null and void at the option of Council.
The company shall keep full, true, accurate and current books of account,
which books and records shall be made available for inspection and copying
by the Borough or by the Borough's authorized representative at all reasonable
times.
A.Â
During the term of this franchise and any renewal thereof,
the company shall maintain within the Borough a local business office or agent
for the purpose of receiving and resolving all complaints regarding the quality
of service, equipment malfunctions and similar matters. The provisions of
this section shall be complied with if the company maintains a local business
headquarters office within 20 airline miles of the principal coordinates of
the Borough, which office may be reached by a local, toll-free telephone call,
and provides the Borough of Pen Argyl or its designee with the name, address
and phone number of a person who will act as the company's agent to receive
complaints regarding quality of service, equipment malfunctions and similar
matters. The local office shall be open to receive inquiries or complaints
from subscribers during normal business hours, and in no event less than 9:00
a.m. to 5:00 p.m., Monday through Friday. An answering service shall be available
during other hours. Any complaints from subscribers shall be investigated
and acted upon as soon as possible, but at least within three business days
of their receipt. The company shall keep a maintenance service log which will
indicate the nature of each service complaint, the date and time it was received,
the disposition of said complaint and the time and date thereof. This log
shall be made available for periodic inspection by the Borough.
B.Â
The company shall, by appropriate means, such as a card
or brochure, as subscribers are connected or reconnected to the system, furnish
information concerning the procedures for making inquiries and/or complaints,
including the name, address and local telephone number of the employee or
agent to whom such inquiries or complaints are to be addressed. The Borough
appoints its Borough Council of Supervisors or its designee as responsible
for implementation of the complaint procedures and continuing administration
of the franchise. All complaints of first impression shall initially be direct
to the company.
The company shall at all times defend, indemnify, protect and save harmless
the Borough of Pen Argyl from and against any and all liability, losses and
physical damage to property and bodily injury or death to persons, including
payments made under workman's compensation laws, which may arise out of or
be caused by the erection, constructed, replacement, removal, maintenance
or negligence, fault or misconduct on the part of the company, its agents,
servants, officers and employees. The company further agrees as follows:
A.Â
The company shall carry workmen's compensation insurance
with statutory limits, and employers' liability insurance, with limits of
not less than $1,000,000, which shall cover all operations to be performed
by company as a result of this ordinance.
B.Â
The company shall carry comprehensive general liability
and comprehensive automobile liability and comprehensive automobile liability
insurance, with bodily injury limits of not less than $1,000,000 per occurrence,
and property damage limits of not less than $1,000,000.
C.Â
The company's workmen's compensation, comprehensive general
liability and comprehensive automobile liability insurance shall be written
by an insurance company with a capital and/or surplus of not less than $3,000,000,
and the company agrees to furnish the Borough with certified copies or certificates
of insurance of said policies, which shall provide that insurance shall not
be canceled unless 10 days' prior written notice shall first be given to the
Borough.
All facilities and equipment of the company shall be constructed and
maintained in accordance with the requirements and specifications of the most
recent editions of the National Electrical Safety Code and the National Electric
Code and such applicable ordinances and regulations set forth by the Borough
and/or any other local, state or federal agencies. Aerial facilities shall
be adequately protected against outages due to lightning strikes.
The company shall not sell or transfer any rights under this franchise
to another without written approval by the Borough, which shall not be unreasonably
withheld after a public proceeding on this matter.
A.Â
The company shall not allow its cable or other operations
to interfere with the television reception of persons not served by the company,
nor shall the system interfere with, obstruct or hinder in any manner the
operation of the various utilities serving the residents of the Borough.
B.Â
The company shall not, as to rates, charges, service
facilities, rules or regulations, or in any other respect, make or grant any
preference or advantage to any person nor subject any person to any prejudice
or disadvantage, provided that nothing in this franchise shall be deemed to
prohibit the establishment of a graduated scale of charges and classified
rate schedules to which any customer coming within such classification would
be entitled.
A.Â
For the purpose of compelling compliance with its grant
and franchise and to secure efficiency of public service at reasonable rates
and the maintenance of the community cable system in good condition during
the full term of the grant, it is provided that upon failure of the company
or its successors or assigns to comply with any of the provisions of the grant
or upon default by the company in any of its obligations hereunder, except
for causes beyond the reasonable control of the company, then upon the failure
of the company within 30 days after written notice from the municipality to
commence and within a reasonable time complete the correction of such default
or noncompliance the Borough of Pen Argyl shall have the right to revoke and
declare terminated this ordinance and all rights of the company hereunder.
In the event that the company shall be adjudged bankrupt or placed in receivership,
the Borough of Pen Argyl may declare the special rights granted herein to
be forfeited and terminated. It is understood that during the reasonable interim
period while transfer of the system is being arranged, such period being no
less than six months and no greater than 24 months the company shall be required
to continue service to the public as a trustee for its successor in interest,
subject to an accounting for net earning or losses during the interim period
which are applicable to the company's operations in the Borough of Pen Argyl.
B.Â
The company shall, at its own expense and cost, promptly
remove or cause to be removed from the streets, alleys and public ways of
the Borough and from all public property all of the wires, poles and installations
of any kind or nature whatsoever which have been installed under the authority
of this franchise upon the revocation of this franchise or the cessation of
operation under this franchise by the company, its successors and assigns.
In the event of such removal, the company shall restore the streets or other
area from which such property has been removed to a condition satisfactory
to the Borough of Pen Argyl. Any property of the company permitted by the
Borough to be abandoned in place shall be abandoned only in such manner as
the Borough may prescribe.
The company shall pay to the Borough a sum of money sufficient to reimburse
for the expenses incurred by it in connection with the publication, preparation
and passage of this ordinance and the rights granted to the company hereunder.
The company shall also pay the Borough for services required of the Borough
Engineer pursuant to the franchise agreement, said services to be billed at
the Borough Engineer's standard billing rates. Payments shall be made by the
company to the Borough within 30 days after the Borough shall furnish the
company with a written statement of such expense.
A.Â
If any section, subsection, sentence, clause, phrase
or portion 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 affect the validity
of the remaining portions hereof.
B.Â
Should any provision of this franchise be inconsistent
or at variance with any rule, regulation or policy, in whole or in part, of
the Federal Communications Commission or any other agency having jurisdiction,
such provision shall be invalid, but the remaining provisions hereof shall
not be affected thereby.
All ordinances or parts thereof in conflict with the provisions of this
ordinance are hereby repealed.
The cable operator shall indicate its acceptance of the terms of this
ordinance and the granting of this franchise within 30 days after it receives
notification of its adoption, which notice shall be given to the cable operator
by the Borough Solicitor, by certified mail, return receipt requested, with
a certified copy of this ordinance enclosed with the notice.
This ordinance shall take effect five days after its enactment.
