[HISTORY: Adopted by the Board of Supervisors
of the Township of East Brandywine 12-19-1983 by Ord. No. 83-02.
Amendments noted where applicable.]
This chapter shall be known and may be cited
as the "East Brandywine Township Community Antenna Television Ordinance."
Upon application duly made, the Township of
East Brandywine may grant the nonexclusive right to erect, maintain
and operate television transmission and distribution facilities and
additions thereto in, under, over, along, across and upon the streets,
lanes, avenues, sidewalks, alleys and other public places in the Township
of East Brandywine (hereinafter referred to as "the Township") for
the purposes of transmission and distribution of audio and visual
impulses and television energy in accordance with the laws and regulations
of the United States of America, of the State of Pennsylvania and
of the Township. The Township may adopt a form for the making of application
pursuant hereto and in the event that such a form is adopted, then
application shall be made only on such form.
Whenever used in this chapter, the following
words shall have the meanings ascribed herein:
TELEVISION
A system for the transmission of off-the-air received audio
and/or visual signals and images by means of electrical impulses,
including microwave, satellite to earth and similar means.
A. To the extent possible, all facilities erected, maintained
or operated pursuant to this chapter shall be attached to poles already
in existence in the Township. To the extent that existing poles are
insufficient for the purposes hereof, or if anyone being granted the
right hereunder (hereinafter referred to as "licensee") is unable
to negotiate agreements satisfactory to licensee providing for use
of existing poles, licensee shall have the right to erect and maintain
its own poles as necessary for the construction and maintenance of
its television distribution system subject to the approval of the
location of such poles by the Township Engineer. Licensee shall, upon
request, reimburse the Township for all reasonable engineering fees
and costs incurred in connection with such approval. The approval
of the Township Engineer shall not be unreasonably withheld. All residential
areas of the Township which are now or in the future served by underground
electrical utilities shall be served only by underground transmission
and distribution facilities. Nothing herein shall be construed to
constitute the exercise of the power of eminent domain by the Township
or permit any licensee to exercise such power acting on behalf of
the Township.
B. Licensee shall have the right, authority, power and
privilege to attach any of its system facilities to any existing or
future poles, towers or other electrical facilities owned by the Township
in a manner which will not interfere with the use of such poles, towers
and other electrical facilities by the Township, provided that no
such attachment shall take place unless 72 hours' prior notice has
been given to the Township and the Township has failed to object to
such attachment. Township shall not unreasonably object to any such
attachment.
C. Licensee shall pay to Township an annual fee for each
pole utilized by licensee owned by the Township, which fee shall not
be less than $1.50 per pole. If the licensee shall negotiate a contract
with the Philadelphia Electric Company or the Bell Telephone Company
of Pennsylvania, or like public utility, for the use of their poles
for a fee per pole per year, then the annual fee payable hereunder
shall be the same as the fee payable pursuant to such negotiated contracts,
but not less than the amount aforesaid.
D. In the event that licensee negotiates a contract fee
per pole per year with such public utility, providing for different
fees to each of those entitles, the annual fee per pole payable to
the Township for each pole owned by the Township and utilized by licensee,
shall be the higher of the two negotiated contract fees, but not less
than the minimum fee as set forth above.
E. In the event licensee does not negotiate an agreement
for the use of any poles of such public utility, the fee payable by
the licensee to the Township shall be the minimum as aforesaid, an
annual fee of $1.50 for each pole owned by the Township and utilized
by the licensee. In the event that a licensee shall use a pole for
less than a full year, then the charge for such pole shall be prorated
from the day when the use of the pole began.
F. Township hereby states its desire that all holders
of public licenses and franchises within the corporate limits of the
Township shall cooperate with every licensee hereunder to allow usage
of existing poles and pole line facilities wherever possible and wherever
such usage does not interfere with the normal operation of said pole
and pole line so that the number of new or additional poles constructed
in the Township shall be minimized.
G. Each licensee shall extend to the Township, free of
any expense, joint use of any and all poles owned by any licensee
for any proper municipal purpose insofar as may be accomplished without
interference with the use and enjoyment of the licensee's own wires
and fixtures. Township shall hold each licensee harmless from any
and all action, causes of action or damage caused by any action of
the Township in placing wires or appurtenances upon the poles of licensee.
H. Insofar as it is within the power of the Township
to grant the following right, the approval of any application made
hereunder shall grant to licensee whose application is approved, the
authority to trim trees upon and overhanging all streets, alleys,
easements, sidewalks and other places within the Township, but only
to the extent necessary to prevent the branches of such trees from
coming into contact with the facilities of the licensee.
I. Each licensee whose application is approved pursuant
to this chapter shall construct an all-bands system capable of providing
a minimum of 30 channels of television reception and FM radio to the
licensee's subscribers and installation and maintenance of equipment
shall be such that standard color signals shall be transmitted to
subscribers.
A. All structures, lines and equipment erected by any
licensee within the Township shall be located so as not to interfere
with the use of alleys, streets, easements and other public ways and
places or within the rights and reasonable convenience of property
owners, and each licensee shall comply with all ordinances of the
Township now or hereafter in force.
B. In case of any disturbance of pavement, sidewalk,
driveway or other surface, licensee shall, at its own expense, and
in a manner approved by Township, remove, replace and restore all
payment, sidewalk, driveway or surface so disturbed to as good condition
as before such disturbance.
C. In the event Township shall at any time lawfully elect
to alter or change any street, alley or other public way or easement
requiring the relocation of any of the facilities of any licensee,
licensee, upon reasonable notice, shall remove and relocate any such
facilities at licensee's own expense.
D. Whenever it shall be necessary for any licensee to
raise or lower its lines to permit the moving of any machinery or
equipment or any building or other structure, the licensee shall accomplish
the same upon the request of any person lawfully entitled to move
such machinery or equipment or building or other structure. The actual
expense of raising or lowering or temporarily removing the licensee's
lines shall be paid by the person requesting the same and the licensee
shall have the right to require payment in advance of the reasonably
estimated cost of such raising, lowering or temporary removal; provided,
however, that if the raising, lowering or temporary removal shall
be necessary for Township purposes and shall be done at the request
of the Township, then such raising, lowering or temporary removal
shall be accomplished by the licensee at no charge to the Township.
E. All poles, lines, structures and other facilities
of the licensee in, on, over or under the streets, sidewalks, alleys,
easements and other public grounds or places within the Township shall
be maintained at all times by the licensee in a safe and appropriate
condition.
F. Each licensee shall furnish, free of charge, at least
one service distribution connection to each school, fire station,
police station, Township administrative building and public library
located within the Township and reasonably accessible to lessee's
transmission routes.
G. Lessee shall make not less than one channel available
for public use and for use by persons and organizations in the Township
and within the school district of which the Township is a part. In
the event that such public use increases, lessee shall use its best
efforts to make additional channels available to fulfill this need.
A. Whenever it is necessary to shut off or interrupt
service for the purpose of making repairs, installations or adjustments,
the licensee shall do so at such time as will cause the least amount
of inconvenience to its customers, consistent with the needs and requirements
of licensee.
B. Each licensee shall maintain telephone service, which
shall be toll free to the caller for calls originating from within
East Brandywine Township, for the purpose of receiving inquiries and
complaints from the licensee's customers. Each licensee shall provide
sufficient maintenance personnel to respond to routine service calls
within 24 hours, Mondays through Fridays, except in the case of major
outages due to storms, civil unrest or acts of God. Each licensee
shall maintain records of complaints and the resolution of such complaints,
which records shall be available and provided on request to the Township
Supervisors of East Brandywine Township.
Each licensee shall indemnify, defend and save
and hold the Township harmless from any and all loss sustained by
the Township by reason of any suit, judgment, execution, claim or
demand whatsoever resulting from any action on the part of the licensee
in the construction, operation or maintenance of its television system.
Each licensee shall carry property damage and public liability insurance
with an insurance company qualified to do business in the Commonwealth
of Pennsylvania. Each licensee shall carry at least the following
minimum amounts of insurance: liability owing to damage to property,
$100,000 per accident; against liability owing to injury to or death
of persons, $500,000 per person and $1,000,000 per accident; provided
that the Township may require increases in such minimum amounts from
time to time to provide for inflation. Each licensee shall also carry
workmen's compensation insurance and such other insurance as may be
required by the laws of the Commonwealth of Pennsylvania in such amounts
as may be required. All insurance policies shall contain an appropriate
provision which waives the right of subrogation or contribution against
or from the Township, its agents, servants or employees, on behalf
of licensee or its insurer arising from activities of licensee within
the Township. Such provisions shall not constitute a waiver for the
negligent acts of the Township, its agents, servants or employees.
The Township shall notify a licensee within 30 days after the presentation
of any claim or demand, either by suit or otherwise, made against
the Township on account of any activity as aforesaid on the part of
any licensee, provided that the failure of the Township to notify
licensee shall not relieve the licensee of its obligations hereunder
unless licensee is actually prejudiced as a result of the failure
of the Township to notify it as to any claim or demand.
Licensee shall have the right to charge and
collect compensation from all subscribers to whom it shall furnish
service, but licensee shall not as to rate, charges, service, facilities,
rules and regulations, or any other respect, make or grant any preference
or advantage to any customer or subject any customer to any prejudice
or disadvantage, but nothing herein contained shall be deemed to prohibit
the establishment of a graduate scale of charges and classified rate
schedules, provided that the classification of customers shall be
reasonable and any customer coming within a particular classification
shall be entitled to the same rates as any other customer coming within
that classification. Rates shall be the same for all classifications
of customers served by licensee from similar facilities. The rates
charged to individual residential units and/or other customers shall
not vary because of geographic position within the Township. Nothing
herein contained shall prevent any licensee from providing a preferential
rate or free service to the Township or for any public purpose. Licensee
shall provide the Township with a copy of its rate schedule and shall
update the same as it is changed.
Rights granted to any licensee hereunder shall
take effect and be in full force from and after the date upon which
each application is approved by the Township. The rights granted hereunder
shall continue in full force and effect for an initial period of not
less than 25 years from the date of application approval and each
licensee whose application is approved shall have the right to renew
the rights granted hereunder for an additional term of 15 years under
the terms hereof from and after the expiration date of the initial
twenty-five-year period. The right to renew for the additional period
shall be exercised by the licensee in the following manner only: by
giving the Township notice, in writing, of the licensee's election
to exercise the option, which notice shall be given not less than
six months, nor more than two years, prior to the expiration of the
initial term granted hereunder, such notice to be either personally
served or mailed, certified or registered mail, return receipt requested,
to the Township at the Township's administrative offices.
A. In the event that licensee shall violate any of the
provisions of this chapter or the provisions of any license granted
hereunder, the Township shall give written notice of the violation
to licensee at its last known address. If such violation continues
for a period of 30 days from the date of said notice, the Township
may revoke and cancel the license and rights granted pursuant to this
chapter. In the event of forfeiture or annulment of the rights granted
hereunder, the licensee may dispose of its property within the Township
in any lawful manner, repairing any damage done by such removal.
B. The licensee, the Township or other party in interest
may proceed in law or equity before a court of appropriate jurisdiction
to enforce the provisions of this chapter and the rights, privileges,
duties and obligations arising hereunder.
In order to render the service contemplated
by this chapter, each licensee may require service from a point-to-point
microwave service common carrier licensed by the Federal Communications
Commission. Within 120 days after approval of its application hereunder,
licensee shall submit an order for service with a qualified carrier.
If the licensee shall not, within six months from the date the qualified
carrier completes construction of the facilities necessary to serve
licensee, have commenced the installation of its television system,
or in the event the licensee does not place an order for service with
a qualified carrier, as required above, the approval of the licensee's
application may be revoked and canceled by the Township. Unless adequate
service is already being provided by another cable television company,
licensee, within two years from the date of approval of its application,
shall provide television distribution service to subscribers within
the Township and shall make television distribution services available
to all residences within the Township, situate along public or private
roads having a density of 35 residences per lineal mile of such roads.
In the case of residences served by a private road, a proper right-of-way
access must be available, at no cost to licensee, for the installation
of the distribution system. The foregoing requirements in the sole
discretion of the Township Supervisors may be modified and amended
in such manner as may be in the public interest.
A. Each licensee shall pay to the Township an amount
which, when added to the amount of all taxes, licenses, fees or impositions
levied or imposed by the Township upon each licensee or upon its property
or operations for the preceding calendar year, will equal 3% of the
gross service revenues received by the licensee from its basic television
distribution business and 3% of the net revenues from its pay TV service
within the Township. "Gross service revenues" as used herein shall
mean the gross annual amount of regular service charges. Payments
required hereunder shall be due within 45 days after the end of each
calendar year, except that licensee shall pay to the Township within
30 days of the date of approval of its application for license hereunder
the sum of $5,000, which shall be credited against the fees and charges
as provided for herein.
B. Each licensee shall keep records of account showing
the date and amount of all payments received. The duly authorized
agent of the Township shall have the right at its expense to inspect
and audit the licensee's records of gross revenues of any licensee
at any reasonable time.
C. Nothing herein contained shall be construed as requiring
any licensee to pay to the Township any portion of the revenue derived
from the sale of its service by the licensee to customers residing
outside the corporate limits of the Township; provided, however, that
upon annexation to the Township of any territory not now within the
corporate limits of the Township, the portion of the licensee's facilities
that may be located within such annexed territory and upon the streets,
alleys and public grounds thereof, shall thereafter be subject to
all of the terms of this chapter.
No licensee hereunder shall engage in the business
of sale or repair of television receivers owned by its subscribers,
nor will any licensee be responsible for the operating condition of
said receiver. Any service furnished by any licensee to a subscriber
pursuant to this chapter shall terminate at the point of connection
of the licensee's facilities to the subscriber's receiver.
Nothing herein contained shall be deemed to
render any right granted hereunder to be exclusive to any licensee.
The rights granted hereunder may not be assigned
or transferred by any licensee, except with the approval of the Township
first had and obtained in writing, which approval may be withheld
only for good cause shown, but as a condition of granting approval
of transfer or assignment, the Township may require the proposed transferee
or assignee to submit reasonable information concerning itself, to
submit the same information as would be required in connection with
making a new application hereunder, and to execute an appropriate
instrument signifying the acceptance by the transferee or assignee
of all of the terms and conditions of this chapter and agreeing to
perform the same.
The Township may require that prior to the erecting, maintaining or operating any facilities provided for hereunder, that a licensee provide security for the payment of any damages done to public or private property or facilities. In addition, the Township may require the licensee to provide security for the payment of any damages done to public or private property or facilities. In addition, the Township may require the licensee to provide security to guarantee the installation of its facilities and the providing of service in accordance with its application and within the area of the Township and time provided in §
120-11 hereof. Such security may be provided by the deposit of funds in escrow, the assignment of an approved letter of credit or bond with approved corporate surety in an amount not to exceed $100,000.