[Ord. 973, 6/5/1991, § 1]
For purposes of this Part the following terms, phrases, words
and abbreviations shall have the meanings ascribed to them below.
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:
An entity which owns or controls, is owned or controlled
by, or is under common ownership with grantee.
The tier of service regularly provided to all subscribers
that includes the retransmission of local broadcast television signals
and the public, educational and governmental channels, if required
by the terms hereof.
The Borough of Quakertown, Bucks County, Pennsylvania, or
the unlawful successor, transferee or assignee thereof.
The Council of the Borough of Quakertown, Bucks County, Pennsylvania.
The Federal Cable Communications Policy Act of 1984, as amended.
The facilities consisting of a set of closed transmission
paths and associated signal generation, reception, control and communications
equipment and all other equipment that is designed to provide cable
service and other similar services to subscribers.
The Federal Communications Commission or successor governmental
entity thereto.
The initial authorization or renewal thereof issued by the
franchising authority as provided this Part, whether such authorization
is designated as a franchise, permit, license, resolution, contract,
certificate or otherwise, which authorizes the construction and operation
of the cable system for the purpose of offering cable service or other
similar services to subscribers.
The Borough of Quakertown, Bucks County, Pennsylvania, or
the unlawful successor, transferee or assignee thereof.
The duly appointed cable television company(ies), as designated
by Borough Council of the Borough of Quakertown, or any other owner
of televised audio/video equipment who uses public property for its
transmission.
An individual, partnership, association, joint stock company,
trust company or governmental entity.
The surface of and the space above and below any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle or other public right-of-way
including, but not limited to, public utility easements, dedicated
utility strips or rights-of-way dedicated for compatible uses and
any temporary or permanent fixtures or improvements located thereon
now or hereafter held by the franchise authority in the service area
which shall entitle the franchise authority and the grantee to the
use thereof for the purpose of public travel or for utility or public
service use dedicated for compatible uses and shall include other
easements or rights-of-way as shall within their proper use and meaning
entitle the franchise authority and the grantee to the use thereof
for the purposes of installing or transmitting grantee's cable
service or other similar services over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, compliances, attachments
and other property as may be ordinarily necessary and pertinent to
the cable system.
The area within the present municipal boundaries of the franchising
authority, and shall include any future additions thereto by annexation
or other legal means.
A category of cable service or other similar services provided
by grantee and for which a separate charge is made by grantee.
A person or user of the cable system who lawfully receives
cable services or other similar services therefrom with grantee's
express permission.
Programming provided by or generally considered comparable
to programming provided by a television broadcast station.
[Ord. 973, 6/5/1991, § 2]
1.Â
Grant. Subject to all provisions of this Part, the franchise authority
hereby grants to grantee a nonexclusive franchise which authorizes
the grantee to construct and operate a cable system and offer cable
service and other services in, along, among, upon, across, above,
over, under or in any manner connected with public ways within the
service area and for the purpose to erect, install, construct, repair,
replace, reconstruct, maintain or remain in, on, over, under, across
or along any public ways and all extensions thereof and additions
thereto such poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, pedestals, amplifiers, appliances, attachments and other
related property or equipment as may be necessary to appurtenant to
the cable system.
2.Â
Favored Nations. In the event that the franchising authority enters
into a franchise, permit, license, authorization or other agreement
of any kind with any other person or entity other than the grantee
for the purpose of construction or operating a cable system or providing
cable service to any part of the franchise area which contains terms
more favorable to such person or entity in any regard than similar
provisions of this franchise, then this franchise shall be deemed
amended as of the effective date of the other franchise, permit, license,
authorization or other agreement so as to give the grantee the benefit
of any such more favorable terms. This Part and franchise agreement
may only be otherwise amended through mutual consent of the parties
hereto or as directed by federal or state law or a ruling of a court
of paramount or competent jurisdiction.
3.Â
Territory. Upon the annexation of any territory to the Borough, the
cable system may be extended, located and operated within said territory
upon the public ways of the Borough, subject to all the terms of this
Part and franchise agreement as though it were an extension made thereunder
and subject to the approval of the Borough Council. Expansion in annexed
territory shall be subject to the terms and conditions of § 603,
Subsections 9 and 10, herein and the authority of the Borough Council
may be superseded by federal or state law.
[Ord. 973, 6/5/1991, § 3]
1.Â
Conditions of Street Occupancy.
A.Â
All transmission and distribution structures, poles, other lines
and equipment installed or erected by the grantee pursuant to the
terms hereof shall be so located as to cause a minimum of interference
with the proper use of public ways and with rights and reasonable
convenience of property owners who own property that adjoins any of
said public ways and shall be subject to approval by the Borough Council;
provided, however, that grantee's use of private rights-of-way
or easements and easements addressed in the Cable Act shall not be
subject to approval of the Borough Council unless a hazardous condition
will result or a Borough ordinance will be violated. Grantee shall
furnish the Borough with a map showing the cable system in sufficient
detail to assure the Borough of being currently advised as to the
location of the cables, lines and wires of the system. It shall be
the responsibility of grantee to keep the Borough advised of any and
all changes and additions and removals in the cable system, except
for the individual subscribers' connection cables, line and wires.
B.Â
It is the policy of the Borough and is understood by grantee that
where distribution lines are to be installed on any public street,
the same shall be attached to existing utility poles and not to additional
poles placed by grantee, unless otherwise approved by the Borough
Council and that where poles are to be placed in alleys, the same
shall be located 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 the streets may be part of the state highway system.
Special exceptions may be granted to grantee by the Borough Council
upon written application to it by grantee, but said exceptions shall
be for good cause shown and in the sole discretion of the Borough
Council.
C.Â
Before grantee sets poles or equipment or constructs any structure
on Borough property, grantee shall file with the Borough detailed
specifications showing the exact location, height and dimensions of
the poles, equipment or structures to be erected. The poles, equipment
or structures shall not be erected thereafter until such specification
shall be approved in writing by the Borough Council. All wires cables
and other overhead equipment shall be at such minimum heights as are
or may be required for telephone or power lines by the Public Utility
Commission of Pennsylvania, the Pennsylvania Department of Highways
or any other governmental authority legally empowered to set such
standards.
2.Â
Restoration of Public Ways. If, during the course of grantee's
construction, operation or maintenance of the cable system, there
occurs a disturbance of any public way by grantee, it shall, at its
expense and in a manner approved by the Borough Council, replace and
restore such public way to as good a condition as was existing immediately
prior to such disturbance, and grantee shall maintain the replacement
or restoration in such an improved condition for one year.
3.Â
Relocation at Request of Franchising Authority. Upon its receipt
of reasonable advance notice, not to be less than five business days,
the grantee shall, at its own expense, protect, support, disconnect,
relocate in the public way or remove from the public way any property
of the grantee when lawfully required by the franchising authority
by reason of traffic conditions, public safety, street abandonment,
freeway and street construction, change or establishment of street
grade, installation of sewers, drains, gas or water pipes or any other
type of structure or improvements by the franchising authority; but,
the grantee shall in all cases have the right of abandonment of its
property. If public funds are available to any person or entity using
such street, easement or right-of-way for the purpose of defraying
the cost of any of the foregoing, such funds shall also be made available
to the grantee.
4.Â
Relocation of Request of Third Party. The grantee shall, on the request
of any person holding a permit issued by the franchising authority
to move a building, structure, large implement or equipment along
or across any public way, temporarily raise, lower or relocate its
wires or cable system to permit the moving of such building, structure,
large implement or equipment; provided that:
A.Â
The expense of such temporary raising, lowering or relocation of
wires or cable system is paid by said person, including, if required
by the grantee, making such payment in advance; and
B.Â
The grantee is given not less than 10 business days' advance written
notice to arrange for such temporary wire changes.
5.Â
Trimming Trees and Shrubbery. The grantee shall have the authority
to trim trees or other natural growth overhanging any of its cable
system. The grantee shall reasonably compensate the franchising authority
or property owner for any damages caused by such trimming or shall,
in its sole discretion and at its own cost and expense, reasonably
replace all trees, shrubs or other property damaged as a result of
any construction, operation or maintenance of the cable system undertaken
by grantee. All trimming and removal shall be done under the supervision
and direction of the Borough Council and at the expense of grantee.
6.Â
Use of Grantee's Equipment by Franchising Authority. Subject
to any applicable state or federal regulations or tariffs, the franchising
authority shall have the right to make additional use, for any public
purpose, of any poles or conduits controlled or maintained exclusively
by or for the grantee in any public way provided that:
A.Â
Such use by the franchising authority does not interfere with a current
or future use by the grantee.
B.Â
The franchising authority holds the grantee harmless against and
from all claims, demands, costs or liabilities of every kind and nature
whatsoever arising out of such use of said poles or conduits, including
but not limited to reasonable attorneys' fees and costs.
C.Â
At grantee's sole discretion, the franchising authority may
be required either to pay a reasonable rental fee or otherwise reasonably
compensate grantee for the use of such poles, conduits or equipment;
provided, however, that grantee agrees that such compensation or charge
shall not exceed those paid by it to public utilities pursuant to
the applicable pole attachment agreement or other authorization relating
to the service area.
7.Â
Safety Requirements. Construction, installation, operation and maintenance
of the cable system shall be performed in an orderly and workmanlike
manner. All such work shall be performed in substantial accordance
with applicable FCC or other federal, state and location regulations.
The cable system shall not reasonably endanger or interfere with the
safety of persons or property in the service area.
8.Â
Aerial and Underground Construction. In those areas of the service
area where all of the transmission or distribution facilities of the
respective public utilities providing telephone communications and
electric services are underground, the grantee likewise shall construct,
operate and maintain all of its transmission and distribution facilities
underground, provided that such facilities are actually capable of
receiving grantee's cable and other equipment without technical
degradation of the cable system's signal quality. In those areas
of the service area where the transmission or distribution facilities
of the respective public utilities providing telephone communications
and electric services are both aerial and underground, grantee shall
have the discretion, subject to the approval of the Borough Council
to construct, operate and maintain all of its transmission and distribution
facilities or any part thereof aerially or underground. Nothing contained
in this subsection shall require grantee to construct, operate and
maintain underground any ground mounted appurtenances such as subscriber
taps, line extenders, system passive devices (splitters, directional
couplers), amplifiers, power supplies, pedestals or other similar
equipment. Notwithstanding anything to the contrary contained in this
section, in the event that all of the transmission or distribution
facilities of the respective public utilities, providing telephone
communications and electric services are placed underground after
the effective date of this Part and franchise agreement, grantee shall
only be required, at grantee's expense, to construct, operate
and maintain all of its transmission and distribution facilities underground
if it is given reasonable notice and access to the public utilities'
facilities at the time that such are placed underground.
9.Â
Required Extensions of Service. The cable system, as constructed as of the date of the passage and final adoption by Borough Council of this Part and franchise agreement, substantially complies with the material provisions hereof. Grantee is hereby authorized to extend the cable system as necessary, as desirable or as required pursuant to the terms hereof within the service area, subject to the approval of the Borough Council. Whenever grantee shall receive a request for cable service from at least 15 subscribers within 1,320 cable-bearing strand feet 1/4 mile of its trunk or distribution cable, it shall extend its cable system to such subscribers at no cost to said subscribers for system extension, other than the usual connection fees for all subscribers; provided that such extension is technically feasible and if it will not adversely affect the operation, financial condition or market development of the cable system or as provided for under Subsection 10 of this Part and franchise agreement. Requests for service shall be numbered as one head-of-household per individual address.
10.Â
Subscriber Charges for Extensions of Service. No subscriber shall
be refused service arbitrarily. However, for unusual circumstances,
such as a subscriber's request to locate his cable drop underground,
existence of more than 150 feet of distance from distribution cable
to connection of service to subscriber or a density of less than 15
subscribers per 1,320 cable-bearing strand feet of trunk or distribution
cable, cable service or other similar services may be made available
on the basis of a capital contribution in aid of construction, including
cost of material, labor and easements. For the purpose of determining
the amount of capital contribution in aid of construction to be borne
by subscribers in the area in which cable service may be expanded,
each requesting subscriber shall pay to grantee an amount equal to
1/2 of the total construction and other costs to connect all requesting
subscribers multiplied by a number whose numerator equals one and
whose denominator equals the total potential number of subscribers.
The potential number of subscribers shall be calculated by counting
all those existing dwelling units between the points where the existing
cable lines are and where it will end after the new installation is
complete. Grantee may require the payment from each requesting subscriber
to be paid in advance.
11.Â
Service to Public Building. The grantee shall provide, without charge,
one outlet of basic service to each of the franchising authority's
office building(s), fire station, police station, public school building
and public recreation building that is passed by its cable system.
The outlets of basic cable service shall not be used to distribute
or sell cable services in or throughout such buildings. In the event
that additional outlets of basic service are provided to such buildings,
the building owner shall pay the usual installation fees associated
therewith including, but not limited to, labor and materials.
12.Â
Service Standards. Grantee shall, during the continuance of this
Part and franchise agreement, provide facilities and service sufficient
to meet the needs of the public welfare and shall maintain its facilities
and services up-to-date and in keeping with technical progress. Grantee
shall maintain and operate its cable system and render sufficient
service in accordance with the rules and regulations as are or in
the future may be set forth by the Federal Communications Commission,
state government, federal government or any authorized agencies thereof.
The Borough shall maintain all authorized police power. The cable
system shall be installed and maintained in accordance with good engineering
practices and any spurious electromagnetic radiation must fall within
the limits specified by the Federal Communications Commission. Any
interference caused by the cable system to television sets not part
of the system shall be immediately addressed by the company upon notice
from the Borough or any Borough resident. Alleged interfered shall
be explained, eliminated or reduced in compliance with FCC standards.
If the interference is caused by grantee and a suitable filter or
other satisfactory device that will remove a problem is available,
it shall be provided to the resident in question. All construction
must be done in a good and workmanlike manner, free of obvious defects
that may be a hazard to life and limb and in conformance with the
standards set forth in the National Electric Safety Code. The location
of the cable system, including antenna site, towers, poles and associated
equipment, shall be chosen with due regard for highest technical performance
concomitant with aeronautical safety considerations and shall be subject
to standards established by the FCC, FAA or other governmental agencies
having jurisdiction over matters addressed in this subsection.
13.Â
Notice of Interruption for Repairs. Whenever it is necessary to shut
off or interrupt service for the purpose of making repairs, adjustments
or installations, grantee 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, grantee shall
give reasonable notice thereof to its customers. Any service interruption
shall be for the shortest period of time consistent with any necessary
repairs, adjustments or installations being made.
14.Â
Continuous Service. Grantee's service shall be continuous daily
during the regular telecast operation hours of the stations and cable
networks whose broadcasts are being transmitted.
15.Â
Nondiscrimination of Service. Grantee shall serve any person residing in or owning property in the Borough and desiring cable service or similar services provided by grantee. It is understood that this subsection is limited by the terms and conditions of Subsections 9 and 10 hereof. Grantee shall not, as to rates, charges, service facilities, rules, regulations or any other respect, make or grant preference or advantage to any person, not subject any person to any prejudice or disadvantage, provided that nothing in this Part and franchise agreement 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 might be entitled; provided, however, that any such classification shall be reasonable in nature and based upon substantial evidence of the need for the classification.
16.Â
Interference. Grantee shall at all times operate the cable system
so as not to adversely affect or interfere with existing radio and
television reception and shall prevent radiation from grantee's
cable system to antennas located in the Borough. In this regard, grantee
shall operate the cable system in compliance with FCC standards.
[Ord. 973, 6/5/1991, § 4]
1.Â
Testing for Compliance. The franchise authority may perform technical
tests of the cable system during reasonable times and in a manner
which does not unreasonably interfere with the normal business operations
of the grantee or the cable system in order to determine whether or
not the grantee is in compliance with the terms hereof and applicable
state and federal laws. Except in emergency circumstances, such tests
may be undertaken only after giving grantee reasonable notice thereof,
not to be less than one business day, and providing a representative
of grantee an opportunity to be present during such tests. In the
event that such testing demonstrates that the grantee has substantially
failed to comply with a material requirement hereof, the reasonable
costs of such tests shall be borne by the grantee. In the event that
such testing demonstrates that grantee has substantially complied
with such material provisions hereof, the cost of such testing shall
be borne by the franchising authority. The results of all such testing
shall be made available to grantee upon grantee's request.
2.Â
Books and Records. The grantee agrees that the franchising authority
may review such of its books and records during normal business hours
as are reasonably necessary to monitor compliance with the terms hereof.
Such records include but shall not be limited to any public records
required to be kept by the grantee pursuant to the rules and regulations
of the Federal Communications Commission. The franchising authority
agrees to treat any information disclosed by the grantee to it on
a confidential basis, and only to disclose it to employees, representatives
and agents thereof that have a need to know or in order to enforce
the provisions hereof.
[Ord. 973, 6/5/1991, § 5]
1.Â
Notice of Violation. In the event that the franchising authority
believes that the grantee has not complied with the terms of the franchise,
it shall notify grantee of the exact nature of the alleged noncompliance.
2.Â
Grantee's Right to Cure or Respond. Grantee shall have 30 days from receipt of the notice described in Subsection 1 to respond to the franchising authority contesting the assertion of noncompliance or to cure such default or, in the event that, by nature of the default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
3.Â
Public Hearing. In the event that grantee fails to respond to the notice described in Subsection 1 pursuant to the procedure set forth in Subsection 2 or in the event that the alleged default is not remedied within 60 days after the grantee is notified of the alleged default pursuant to Subsection 1, the franchising authority shall schedule a public meeting to investigate the default. In the event that a special meeting is not scheduled for such purposes, such public meeting shall be held at the next regularly scheduled meeting of the franchising authority. The franchising authority shall notify the grantee of the time and place of such meeting and provide the grantee with an opportunity to be heard.
4.Â
Enforcement. Subject to applicable federal and state law, in the
event the franchising authority, after such meeting, determines that
grantee is in default of any provision of the franchise, the franchising
authority may:
A.Â
Foreclose on all or part of any security provided under the franchise,
if any, including, without limitation, any bonds or other surety;
provided, however, that the foreclosure shall only be in such manner
and in such amount as the franchising authority reasonably determines
is necessary to remedy the default.
B.Â
Commence an action at law for monetary damages or seek other equitable
relief.
C.Â
In the case of a substantial default of a material provision of the
franchise, declare this Part and franchise agreement to be revoked.
5.Â
Acts of God. The grantee shall not be held in default or noncompliance
with the provisions of this Part and franchise agreement, nor suffer
any enforcement or penalty relating thereto, where such noncompliance
or alleged defaults are caused by strikes, acts of God, power outages
or other events reasonably beyond grantee's ability to control.
[Ord. 973, 6/5/1991, § 6]
1.Â
Notice. Unless expressly otherwise agreed between the parties, every
notice or response to be served upon the franchising authority or
grantee shall be in writing and shall be deemed to have been duly
given to the required party five business days after having been posted
in a properly sealed and correctly prepaid, at a post office or branch
thereof regularly maintained by the United States Postal Service.
The notices or responses to the franchising authority shall be addressed
as follows: Borough Manager, Borough of Quakertown, 15-35 N. Second
Street, P.O. Box 722, Quakertown Pennsylvania, 18951.
2.Â
Descriptive Headings. The captions to sections contained herein are
intended solely to facilitate the reading thereof. Such captions shall
not affect the meaning or interpretation of the text herein.
3.Â
Severability. Should any section or part of any section of this Part
and franchise agreement for any reason be declared void or invalid,
the remainder of this Part and franchise agreement shall not be affected
thereby.
4.Â
Maintenance of Office. Unless otherwise agreed to by the Borough
Council, grantee shall maintain an office within five miles of the
Borough of Quakertown, with a telephone available for accepting all
complaints and requests for service. The telephone number shall be
a local (no-charge) call. Further, the number shall be available to
all subscribers 24 hours per day, 365 days per year, with a duly authorized
representative available to answer calls. As needed maintenance to
the cable system shall be afforded to all subscribers 24 hours per
day, 365 days per year. Grantee shall promptly investigate and resolve
all complaints regarding the quality of service, equipment malfunctions
and similar matters. Grantee shall comply with subsection regarding
physical location of an office so long as it is practicable and economically
feasible to do so; but in the event that a full scale office cannot
be maintained, grantee shall establish a payment collection center
at a location near the present office or elsewhere within the Borough.
The franchising authority and cable subscribers within the Borough
shall be given adequate notice of any change in circumstances, address
or telephone number.
5.Â
Compliance with Applicable Laws and Ordinances. Grantee shall at
all times be subject to all lawful exercise of the police power by
the Borough and to such reasonable regulations as the Borough shall,
by resolution or ordinance, provide from time to time. In addition,
grantee shall be subject to any and all regulations either presently
in effect or which shall become so in the future either by the Federal
Communications Commission, the Pennsylvania Public Utility Commission
or any other state or federal regulatory or governmental body.
6.Â
Publication Costs. Grantee shall assume the initial costs of publication
of this Part, as such publication is required by law. Bills for publication
costs shall be presented to grantee by the Secretary of the Borough,
which bills shall be paid within 45 days after receipt of the same
by grantee.
