§ A230-1Title.
§ A230-2Definitions.
§ A230-3Nonexclusive franchise.
§ A230-4Territory.
§ A230-5Compliance with applicable laws and ordinances.
§ A230-6Liability of company.
§ A230-7Franchise fee.
§ A230-8Service standards.
§ A230-9Transfer of franchise.
§ A230-10Conditions on street occupancy.
§ A230-11Reports required.
§ A230-12Inspection of books.
§ A230-13Term of franchise.
§ A230-14Publication costs.
§ A230-15Forfeiture.
§ A230-16Manner of giving notices.
§ A230-17Borough held harmless.
§ A230-18Severability.
§ A230-19Construction.
§ A230-20Level playing field.
This ordinance shall be known and may be cited as the "Duncannon Borough Cable Television Franchise Ordinance."
As used in this chapter, the following terms shall have the meanings indicated:
- BOROUGH
- The Borough of Duncannon, Perry County, Pennsylvania.
- BOROUGH COUNCIL
- The governing body of the Borough of Duncannon, Perry County, Pennsylvania.
- CABLE TELEVISION SYSTEM (CATV)
- An arrangement or combination of apparatus designed to receive, transmit, amplify and distribute television, radio, satellite signals and electronic communications and for a consideration are delivered to subscribers.
- COMPANY
- Blue Ridge Cable Technologies, Inc., the grantee of rights under this franchise.
- PERSON and APPLICANT
- Any person, firm, partnership, association, corporation, company or organization of any kind.
- STREETS
- Includes all public streets, ways, alleys and parkways owned by or under the jurisdiction of the Borough of Duncannon.
There is hereby granted by the Borough to the company a nonexclusive franchise to construct a cable television system (CATV) as may be prescribed or permitted by the Federal Communications Commission and to use pole, wires, conduits and appurtenances under, along, across or upon any or all public streets, ways, alleys or parkways, as the same now or may hereafter exist with the Borough of Duncannon and within the boundaries of the said Borough of Duncannon as the same may hereafter be extended for transmitting and distributing electricity and electrical impulses and signals for communication purposes, namely to produce reproduction of sights and sound in combination to the residents of the Borough of Duncannon, upon the terms and conditions and subject to the limitations herein set forth.
Upon the annexation of any territory to the Borough, the portion of any said cable system that may be located or operated within said territory, upon the streets, alleys or public ways thereof, shall thereafter be subject to all the terms of this franchise as though it were an extension made thereunder.
The company shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power by the Borough, and to such reasonable regulations as the Borough shall hereafter by resolution or ordinance provide.
The company shall indemnify and save the Borough and its agents and employees harmless from all and any claims for personal injuries or property damages, and any other claims and costs, including attorneys' fees, expenses of investigation and litigation of claims and suits thereon which may arise from the installation and/or operation of the company's television antenna system or any equipment of the company. In case suit shall be filed against the Borough, either independently or jointly with said company, to recover for any said claim or damages, said company, upon notice to it by said Borough, shall defend said Borough, its agents and employees against said action, and in the event of a final judgment being obtained against said Borough, either independently or jointly with said company, the said company will pay said judgment and all costs and hold the Borough harmless therefrom. For this purpose, the company shall carry and at all times maintain on file with the Secretary of the Borough of Duncannon and at all times keep in force a liability policy or policies in the name of the company and the Borough as their respective interests may appear, insuring the company and the Borough against any and all liability arising from the installation and/or operation of said system, which policy or policies shall be approved by the Solicitor of the Borough. Such liability policy or policies shall be in the sum of the following: products/completed operations limit of $1,000,000, personal and advertising limit of $1,000,000 and each occurrence limit of $1,000,000. Such policy or policies of insurance shall be issued by a company licensed to do business in the Commonwealth of Pennsylvania. The company shall also carry workers' compensation coverage for all of its employees, subject to and in the amount required by the state statutory limits, and shall submit to the Secretary of the Borough a certificate of insurance showing the workers' compensation coverage in effect.
The company shall annually pay a franchise fee to the Borough during the life of this franchise, said fee to be 3% of the gross annual receipts of the company arising within the Borough from monthly subscriber cable television service charges, said fee being for the regulation and privilege of using the streets and alleys of the Borough for the operation of its system. The franchise fee shall be due and payable on the first day of April of each and every year hereafter. The franchise fee shall be passed through to the subscribers as permitted by law.
The company shall during the continuance of this franchise provide facilities and service sufficient to meet the needs of the subscribers and shall maintain its facilities and service up-to-date and in keeping with technical progress. The system shall be installed and maintained in accordance with good engineering practices and Federal Communications Commission regulations. All construction must be done in a good and workmanlike manner free of obvious defects, which may be a hazard to life and limb, and in conformance with the standards as set forth in the National Electric Safety Code.
Notice of interruption for repairs. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the company shall do so at such time as shall cause the least amount of inconvenience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to its customers.
Continuous service. Company service shall be daily during the regular telecast operating hours of the stations whose TV broadcasts are being transmitted.
Nondiscrimination of service. The company shall serve any person residing in or owning property in the Borough desiring service who shall pay the charges set forth in company policy.
Interference. The company shall at all times operate the community system so as not to adversely affect or interfere with existing radio and television reception and shall prevent radiation from the company's cables to antennas located in Borough.
The company shall immediately investigate and resolve all service complaints and equipment malfunctions. The company shall maintain a local business office for these purposes in Palmerton, Pennsylvania, where a complete agreement governing the service to customers is on file.
The sole stockholder of the company is presently Pencor Services, Inc. The company shall not sell, transfer, or assign this franchise, nor shall its owners transfer majority ownership of their stock of said company, unless to one of its wholly owned subsidiaries, without the approval of the Borough Council, which said approval will not be unreasonably withheld. Provided, further, that no sale or transfer shall be effective until the vendee, assignee or lessee has filed with the Borough Secretary an instrument accepting the terms of the franchise and agreeing to perform all the conditions thereof.
Use. All transmission and distribution structures, lines and equipment erected by the company within the Borough shall be located with the approval of the Borough Council and shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin the streets, alleys or other public ways and places. The company shall furnish the Borough with a map showing the pole line system in sufficient detail to assure the Borough of being currently advised as to the location of the cables of the system. It shall be the responsibility of the company to keep the Borough advised of any and all changes and additions and removals in the system, except for the individual subscriber's connection wires.
Restoration. In case of any disturbance of pavement, sidewalk, driveway, or other surfacing, the company shall, at its own cost and expense and in a manner approved by the Borough Council, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced, and shall maintain the restoration in improved condition for one year.
Relocation. In the event that at any time during this franchise the Borough shall lawfully elect to alter or change the location or grade of any street, alley or other public way or if in the opinion of the Borough Council a pole or pole line interferes with the necessary convenience of the Borough or a property owner, then, upon reasonable notice by the Borough, the company shall remove, relay and relocate its poles, wires and cables or other television fixtures at its own expense.
Placement of fixtures.
It is to be the general policy of the Borough and it is understood by the company that, where distribution lines are to be installed along any public street, the same shall preferably be attached to existing utility poles rather than to additional poles placed by company, and that where poles are to be placed in alleys, the same shall be located whenever possible on the same side of the alley as existing utility poles. It is understood and agreed that this restriction and limitation shall extend to any and all streets within the limits of the Borough, even though some of said streets may be part of the state highway system; special exception or exceptions may be granted to the company by the Borough Council upon written application to it by company, but said exceptions shall be for good cause shown and in the sole discretion of the Borough Council.
Before the company sets poles or constructs any structure on Borough property, it shall file with the Borough detailed specifications showing the exact location, height and dimensions of the poles or structures to be erected. The poles or structures shall not be erected thereafter until such specifications shall be approved in writing by the Borough Council and the Pennsylvania Department of Transportation has issued a license, when and if required. All wires, cables and other overhead equipment shall be at such minimum heights as are or may be required of telephone or power lines by the Public Utility Commission of Pennsylvania or the Pennsylvania Department of Transportation.
Where the Borough Council of the Borough is uncertain as to the exact location of the limits of the right-of-way of any street or alley, then, in its discretion, it may require the same to be surveyed by a surveyor selected by it, the cost of said survey to be paid by the company.
Tree trimming. The company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with wires and cables of the company, all trimming to be done under the supervision and direction of the Borough Council and at the expense of the company.
Use of poles and fixtures. The company agrees that it will furnish a copy of any contract entered into with any utility for the use of their poles by the company and setting forth the terms, conditions and duration of said contract. The company agrees that the copy of the aforementioned contract will be filed with the Secretary of the Borough prior to starting any installation of wires and other facilities on the Borough streets under this franchise.
Removal of wires and installation from premises of subscriber. The company shall, on request of any subscriber, promptly remove all wires and installations from the premises of such subscriber.
Removal of wires, poles and installations from Borough streets. The company shall remove or cause to be removed from the streets, alleys and public ways of the Borough of Duncannon 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 termination of this franchise, the cessation of operation under this franchise by the company, its successors or assigns, for any reason whatsoever, or the forfeiture of this franchise under the provisions herein.
For the purpose of administering this ordinance, the company shall:
Keep and render its books and records in a manner which will permit the drawing off of a detailed financial statement therefrom clearly disclosing the amount of rentals received by the company in arriving at the determination of the gross receipts rental as heretofore set forth.
Within 60 days after the close of its annual fiscal year, the company shall file with the Borough a verified statement of the income received from rentals in the Borough for the preceding fiscal year. The fiscal year of the company shall be December 31st and shall not be changed without the approval of the Borough Council.
The Borough Council, their Treasurer, Solicitor, auditors or accountant shall have the right at reasonable times to inspect the books and records of the company for the purpose of verifying the statement of rentals received.
The franchise and rights granted herein shall take effect upon the effective date of this ordinance and shall continue in force and effect for a period of 15 years thereafter. At the option of the company and with approval of the Borough Council, the franchise may be extended for additional terms, each of 10 years. Any modifications of 76.31 of the Rules of the Federal Communications Commission shall be incorporated into this Franchise Ordinance within one year of adoption or at the time of franchise renewal, whichever occurs first.
The company shall assume the cost of publication of this ordinance as such publication is required by law. A bill for publication costs shall be presented to the company by the Secretary of the Borough and, upon the company's filing of acceptance, shall be paid at that time.
The Borough Council may at any time declare a forfeiture of this grant for violation or default by the company of any of the terms thereof, provided that none of the terms of this grant shall be deemed to be violated so as to permit such forfeiture unless the company shall first be given notice by the Borough of such violation or default and of the attempt to declare a forfeiture and thereafter if such violation or default shall continue for a period of more than 90 days all the rights and privileges of said company under the provisions of this ordinance may be forthwith declared forfeited and revoked. If any action shall be instituted and prosecuted directly or indirectly by the company, or by its stockholders, or creditors, to set aside or have declared void any terms of this grant, the whole of this grant may be thereupon forfeited and annulled at the option of the Borough Council, to be expressed by ordinance. Provided, however, the company shall not be deemed to be in default for performance of any provision of this grant, nor shall forfeiture be invoked for any violation or failure to perform any provision hereof due to strikes, lockouts, insurrections, acts of God, or any cause beyond the control of the company.
Whenever, by the terms of this ordinance, notice is required to be given by the Borough to the company, it may be given by delivering to an officer of company a paper writing thereof during the ordinary business hours at the principal office of the company. Whenever the company is required to give notice to the Borough, it shall do so by leaving or delivering a paper writing thereof at the office of the Secretary of the Borough during ordinary business hours.
The company will hold the Borough harmless from the alleged violation of any utility franchise previously granted by the Borough. The granting of a franchise under this ordinance shall not be construed as any undertaking or guarantee of the efficiency of the company or maintenance of the service of company. The Borough assumes no responsibility for the acts or omissions of the company other than to require compliance with this ordinance.
Should any section or part of any section of this ordinance, for any reason, be declared void or invalid, the remainder of said ordinance shall not be affected thereby.
CATV service under this franchise shall be to all portions of the Borough, excluding those areas with a population density of less than 20 homes per mile.
In the event that Duncannon Borough grants one or more franchise(s) or similar authorization(s), for the construction, operation and maintenance of any communication facility which shall offer services substantially equivalent to services offered by company, it shall not make the grant on more favorable or less burdensome terms. If the company finds that the agreement granting other franchise(s) contain provisions imposing lesser obligations on the additional franchise thereof than are imposed by the provisions of this ordinance, the company may petition Duncannon Borough for a modification of this ordinance. The company shall be entitled, with respect to said lesser obligations, to such modification(s) of this ordinance as may be determined to be necessary to insure fair and equal treatment by this agreement and said other agreements. In the event that a nonfranchised multichannel video programmer/distributor provides service to residents of the Duncannon Borough, the company shall have a right to request franchise agreement amendments that relieve the company of regulatory burdens that create a competitive disadvantage to the company. In requesting amendments, the company shall file a petition seeking to amend the franchise. Such petition shall i) indicate the presence of a nonfranchised competitor(s); ii) identify the basis for the company's belief that certain provisions of the ordinance place the company at a competitive disadvantage.
