[HISTORY: Adopted by the Board of Supervisors of the Township
of Maidencreek 10-14-2010 by Ord. No. 226. Amendments noted where
applicable.]
GENERAL REFERENCES
Cable franchise agreement — See Ch. A226.
This chapter shall be known and may be cited as "the Cable Service
Provider Ordinance." The purpose is to provide authorization and structure
to the process of issuing franchises to cable service providers. Notwithstanding
anything to the contrary, nothing in this chapter shall be construed
or interpreted to exceed any governing federal or state statutes concerning
the granting of franchises and the administration of franchise agreements
with cable service providers, and this chapter shall be construed
and administered consistent with the provisions of such applicable
federal and state statutes.
For the purpose of this chapter, the following terms, phrases
and words shall have the following meanings:
The Board of Supervisors of the Township of Maidencreek,
Berks County, Pennsylvania.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
[Amended 3-10-2016 by Ord. No. 239]
Any duly licensed person qualified to and approved to offer
cable service.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service, which includes video programming
and which is provided to multiple subscribers within the Township,
but such term does not include
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using 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 Cable Communications
Act, except that such facility shall be considered a cable system
(other than for purposes of Section 521 of the Cable Communications
Act) to the extent that facility is used in the transmission of video
programming directly to subscribers unless the extent of that use
is solely to provide interactive on-demand services;
An open video system that complies with Section 653 of the Cable
Communications Act; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
[Amended 3-10-2016 by Ord. No. 239]
The Township of Maidencreek, Berks County, Pennsylvania.
Any person or entity which is granted a nonexclusive franchise
pursuant to the terms of this chapter.
[Amended 3-10-2016 by Ord. No. 239]
All revenue received by Franchisee or its Affiliated Entities
arising from, attributable to, or in any way derived from the operation
of Franchisee's Cable System in the Township to provide cable
services. Gross revenues shall include, but are not limited to, the
following:
Basic service fees;
Fees charged to subscribers for any cable service tier other
than basic service;
Fees charged for premium cable services;
Fees charged to subscribers for any optional, per-channel or
per program cable services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for cable service;
Fees for downgrading any level of cable service programming;
Fees for service calls on cable services;
Fees for leased access channels;
Charges based on the sale or lease of any portion of the cable
system for cable service;
Rental or sales of any and all cable service equipment, including
converters and remote control devices;
Any and all locally derived advertising revenues on a pro rata
basis;
Fees charged for use of any cable service equipment, including
cable transmission wires, by any other entity;
Revenues or commissions from locally derived home shopping channels
on a pro rata basis;
Revenue from interactive cable services;
Fees for any and all cable music services where such services
are available to subscribers as an optional service and/or on a subscription
basis;
Fees for video-on-demand;
Late payment fees on cable services;
Gross Revenues shall not include bad debts; program launch fees,
interest income; refundable deposits; or any taxes on services furnished
by franchisee and imposed directly upon any subscriber or user by
the Township, state, federal or other governmental unit. In the event
of any dispute over the classification of revenue, the Township and
franchisee agree that reference should be made to generally accepted
accounting principles ("GAAP").
Any individual, firm, partnership, association, corporation,
limited liability company, or other company or organization of any
kind, whether for profit or not for profit.
The Township of Maidencreek.
No person or cable service provider shall provide any cable
service or operate a cable system within the Township without first
obtaining a franchise from the Township pursuant to the terms of this
chapter. A nonexclusive franchise to construct, operate and maintain
a cable system and to provide cable service within all or any portion
of the Township is required of any person desiring to provide cable
service in the Township. A franchise may be granted by the Board of
Supervisors by resolution or written approval of a franchise agreement
to any person, firm, or corporation, whether operating under an existing
franchise or not, who or which offers to furnish and provide such
cable service. Such franchises shall be nonexclusive. No right to
use and occupy said streets, alleys, public ways and places granted
pursuant to this chapter shall be deemed to be exclusive, and the
Township reserves the right to grant co-extensive rights to any other
qualified cable service provider at any time and from time to time
in the future.
Grantees shall, at all times during the term of a franchise
granted pursuant hereto, be subject to all lawful exercise of the
police power by the Township, and to such reasonable regulation, pursuant
to the exercise of such police power, as the Township, Commonwealth
of Pennsylvania or United States of America shall hereafter by resolution,
ordinance, statute or regulation provide, including but not limited
to:
A.Â
Interference. If there is any interference on any television, radio,
or other electronic device not connected with the conductors or fixtures
of the grantee, the grantee shall immediately at its own cost and
expense eliminate such interference. If such interference cannot be
eliminated within 48 hours after notice to do so, the Township may
direct the suspension of the operation of the grantee within the affected
area of the Township until such interference is eliminated.
B.Â
Building permits. In addition, the grantee shall apply for and take
out building permits, required by the Township for construction of
buildings, placement of poles, attachments to bridges, and cuts into
streets and sidewalks to be undertaken by the grantee. Such permits
will not be unreasonably withheld or delayed by the Township but shall
be issued in the normal course. The grantee shall pay a fee for inspections
of any work involved in the public right-of-way including but not
limited repairs to roads due to cuts or other disturbance. No permit
shall be required for individual subscriber connections or terminations
or for routine maintenance and repair that does not impede traffic
or cause occupancy of any public right-of-way.
C.Â
Fees. The fee shall be fixed by resolution of the Board of Supervisors
from time to time.
A.Â
The grantee shall indemnify and save harmless the Township and its
elected and appointed officials, employees and agents from any suit,
judgment, claim, demand, loss, cost or expense of any kind whatsoever,
including all counsel fees and court costs arising out of or in any
way relating to the grantee's activities and/or operations within
the Township, including but not limited to the operation, the construction,
maintenance or repair of its cable system in the Township. The Township
shall notify the grantee as soon as reasonably possible upon the presentation
of any suit, claim or demand made against the Township on account
of any damages or losses as aforesaid resulting from the operations
of the grantee. The Township shall promptly notify the grantee of
any such claim or legal proceeding and afford the grantee the opportunity
to participate in and otherwise defend (subject to the duty to cooperate
with the Township) any such action or proceeding and any related compromise,
settlement, resolution or disposition of such claim or proceeding.
Both parties will cooperate fully with each other in the defense of
such claim and make available to the grantee all such information
under its control relating thereto. Notwithstanding the foregoing,
the grantee shall be solely responsible and liable for all costs,
fees, judgments, awards, and/or settlement payments.
B.Â
The grantee shall furnish to the Township, prior to the grant of
a franchise hereunder, evidence in writing that the grantee has in
full force and effect public liability insurance of not less than
$1,000,000 for any one person and $2,000,000 for any one incident,
and property damage insurance of not less than $1,000,000 duly issued
by an insurance company or companies authorized to do business in
the Commonwealth of Pennsylvania, said insurance to cover all operations
by the grantee within the Township. Upon request, written evidence
of the maintenance of such insurance in full force and effect shall
be furnished annually thereafter to the Township and such other terms
as shall be provided for in the franchise agreement.
The grantee may promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform
its obligations under a franchise granted pursuant to this cable television
chapter and to assure an uninterrupted service to each and all of
its customers; provided, however, that such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof,
additional regulations or ordinances of the Township, or the laws
of the Commonwealth of Pennsylvania or the United States of America.
A.Â
Use. All transmission and distribution structures, lines and equipment
erected by the grantee within the Township shall be so located as
to cause minimum interference with the use by all others of streets,
alleys and other public ways and places, and to cause minimum interference
with the rights or reasonable convenience of owners of property which
abut the said streets, alleys or other public ways and places.
B.Â
Restoration. In case of any disturbance of pavement, sidewalk, driveway
or other surfacing, the grantee shall, at its own cost and expense
and in a manner approved by the Township Engineer or other person
designated by the Board of Supervisors, 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.
C.Â
Relocation. In the event that at any time during the period of any
franchise granted pursuant to this chapter, the Township shall lawfully
elect to alter or change the grade or location of any street, alley,
or other public way, the grantee, upon reasonable notice by the Township,
shall remove, relay and relocate its poles, wires, cables, underground
conduits, manholes and other fixtures at its own expense.
D.Â
Placement of fixtures. The grantee, insofar as it is reasonably possible
to do so, shall locate its wires, cables, conduits and other television
conductors and fixtures on existing utility poles of either the electric
or the telephone company. The grantee shall not place poles or other
fixtures where the same will interfere with any gas, electric or telephone
fixtures, water hydrant or main or other utilities, and all such poles
or other fixtures placed in any ultimate street right-of-way shall
be placed in such a way as not to impede or interfere with sight distances
the flow of traffic, or other safety concerns. Ordinarily facilities
may be placed at the outer edge of the sidewalk and inside the curb
line; those placed in alleys shall be placed close to the line of
the lot abutting on said alley, and in such a manner as not to interfere
with the usual travel on said alleys and shall otherwise place all
facilities in accordance with all applicable codes and ordinances.
E.Â
Temporary removal of wire for building moving. The grantee shall,
on the request of any person holding a building permit issued by the
Township, temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same and the grantee
shall have the authority to require such payment in advance. The grantee
shall be given not less than 20 days' advance notice to arrange
for such temporary wire changes.
F.Â
Tree trimming. The grantee shall have the authority, to the same
extent that the Township has such authority, to trim trees upon and
overhanging streets, alleys, sidewalks and public places of the Township
so as to prevent the branches of such trees from coming in contact
with the wires and cables of the grantee.
A.Â
Township rules. Township may at any time adopt by resolution such
additional reasonable regulations as it shall find prudent or necessary
in the exercise of the police power, provided that such regulations
shall not be in conflict with the laws of the Commonwealth of Pennsylvania
and the United States.
B.Â
Use of facilities by Township. The Township shall have the right,
during the life of this franchise, free of charge, where aerial construction
exists, of maintaining upon the poles of the grantee within the Township
wires and fixtures necessary for any municipal purpose including but
not limited to police communications, fire alarm and emergency management,
civil defense or other use systems. The Township will be responsible
for installation and maintenance of any such systems. If any such
systems interfere with operation or maintenance of the cable system,
then the Township shall move or remove the same upon reasonable notice
from the grantee.
C.Â
Inspection. The Township shall have the right to inspect all construction
or installation work during such construction or installation or at
any time after completion thereof, in order to insure compliance with
the provisions of this chapter and all other governing ordinances.
The grantee will, upon request, provide free installation and
standard cable service to one outlet in each municipal building, public
and private school building and police facility, fire and ambulance
station within Township provided such structures are within 200 feet
of existing service area.
The grantee shall have no obligation to extend the cable system
beyond that which exists on the effective date of this chapter except
in accordance with the grantee's then-current line extension
policy. Notwithstanding the foregoing, the grantee shall use all reasonable
efforts to provide cable service to all residents of the Township
who request the same. Specifically, the grantee shall make cable service
available to every residential dwelling unit within the franchise
area where the minimum density is at least 35 dwelling units per linear
mile and is within one mile of the existing cable system.
[Amended 3-10-2016 by Ord. No. 239]
Any grantee holding a franchise pursuant to the terms of this
chapter shall pay to the Township a franchise fee for the privilege
of operating its cable system of the sum of up to 5% of the annual
gross revenue of the cable service provider. In the event that federal
law is amended to authorize a franchise fee higher than 5%, the franchise
fee shall automatically adjust to the highest rate allowable by law
with such adjusted fee payable by Franchisee upon the effective date
of such amendment. Payment shall be made as agreed between the Township
and the cable service provider but in no event later than March 31
of each year for the preceding calendar year.
[Amended 3-10-2016 by Ord. No. 239]
The grantee shall at all times maintain adequate records of
the gross receipts from service rental income, which shall be reported,
together with a statement showing the basis for computation of fees,
on a quarterly basis to the Township within 10 days of each franchise
fee payment. The statement shall contain line items for all sources
of revenue received and the amount of revenue received from each source.
The report shall be verified by an authorized representative of Franchisee.
[Amended 3-10-2016 by Ord. No. 239]
Any franchise granted hereunder shall be for an initial term
as agreed upon by the Township and Franchisee. Unless otherwise required
by any applicable federal or state statute, the franchise may be renewed
at the Township's discretion. The grantee shall give the Township
six months' notice of its intent to request each renewal; otherwise
the franchise shall terminate at the end of the then-current term.
A.Â
All applicants for a franchise shall submit to the Township a statement
containing the following:
(1)Â
Name of the applicant.
(2)Â
Address of the applicant.
(3)Â
Evidence of financial condition of the applicant and, if the applicant
is a corporation or partnership, the names of the principal stockholders
or partners, whichever is applicable. A financial statement of the
person or corporation shall be submitted and shall be certified by
a certified public accountant.
(4)Â
Description of the area to be covered by the franchise.
B.Â
Upon receipt of the above information, together with such other information
as is requested by the Township, the Board of Supervisors shall determine
whether or not it is in the best interests of the Township to grant
a franchise to the applicant.
A.Â
Upon revocation of the franchise by the Township, or if any franchise
is not renewed, the grantee shall remove all of its equipment and
other facilities from the Township within a reasonable time, and shall
restore as nearly as possible all public and private property affected
thereby to the condition it was in prior to the installation of such
equipment and facilities by said company. Nothing in this section
shall be construed to require removal otherwise prohibited by any
applicable federal or state statute.
B.Â
In addition to all other rights and remedies retained by the Township under this chapter, the Township shall have the right to revoke a franchise if the grantee knowingly fails to substantially comply with any material provisions of this chapter or the franchise agreement. The Township shall not have the right to revoke a franchise if the grantee cures the material breach in accordance with Subsection B(1) below or if the material breach occurs without fault of the grantee or occurs as a result of circumstances beyond the grantee's control. Revocation shall be by ordinance duly adopted by 3/4 of all the members of the Board of Supervisors, in accordance with the following procedures:
(1)Â
The Board of Supervisors shall notify the grantee in writing of the
alleged failure of compliance, setting forth the reasons for alleging
that the failure is knowing, material and substantial. The grantee
shall have 60 days subsequent to the receipt of the notice to correct
the failure and respond to the Board of Supervisors.
(2)Â
Within 30 days of the receipt of the grantee's response, or
if the grantee fails to respond, the Board of Supervisors, if it concludes
that a basis for revocation still exists, shall notify the grantee
in writing of this conclusion.
(3)Â
Within 30 days of the determination that a basis for revocation exists,
the Board of Supervisors shall hold a public hearing upon reasonable
notice and affording due process to consider revocation. At the public
hearing, the grantee shall be given an opportunity to address the
grounds for revocation including the right to present evidence and
examine witnesses in accordance with the standards of a fair hearing
applicable to administrative hearings in the Commonwealth of Pennsylvania.
The Board of Supervisors will provide a stenographic record of the
public hearing. The Board of Supervisors shall, within 21 days of
the hearing, either determine not to revoke the franchise, or, upon
stated grounds, revoke the franchise absolutely or conditionally.
No revocation will be deemed effective, however, until either the
grantee accepts in writing the ruling of the Board of Supervisors
or has exhausted all its administrative and judicial appeals and the
Board of Supervisors' ruling has been upheld by a court of last
resort.
(4)Â
Unless otherwise noted, all notices shall be in writing and shall
be sent by either U.S. Postal Service via certified mail, return receipt
requested, hand-delivery or by a nationally recognized overnight courier
service that guarantees next-day delivery.
A.Â
In accordance with Section 626 of the Cable Act, 47 U.S.C.§ 546,
a franchise may be renewed by the Township pursuant to the procedures
established in this section and applicable federal and state law and
regulations.
(1)Â
During the six-month period which begins with the 36th month before
the expiration of the franchise, the Township may on its own initiative,
and shall at the request of the grantee, commence proceedings which
afford the public in the franchise area appropriate notice and participation
for the purposes of:
(a)Â
Identifying future cable-related community needs and interests;
and
(b)Â
Reviewing the performance of the grantee under the franchise
during the then-current franchise term. If the grantee submits, during
such six-month period, a written renewal notice requesting the commencement
of such a proceeding, the Township shall commence such a proceeding
not later than six months after the date such notice is submitted.
(2)Â
Submission of proposal.
(a)Â
Upon completion of such proceedings, the grantee may submit
a proposal for renewal. Upon the request of the Township, a grantee
shall submit a proposal for renewal.
(b)Â
Subject to restrictions contained in the Cable Act, including
Section 624, any such proposal shall contain such material as the
Township may require, including proposals for an upgrade of the cable
system.
(c)Â
The Township may establish a date by which any such proposal
shall be submitted.
(3)Â
Upon submittal of a proposal for the renewal of a franchise, the Township 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(2)(a), shall either renew the franchise or issue a preliminary assessment that the franchise should not be renewed and commence at the request of the grantee or on its own initiative an administrative proceeding to consider whether:
(a)Â
The grantee has substantially complied with the material terms
of the existing franchise, this chapter, and applicable law;
(b)Â
The quality of the grantee's cable service, including signal
quality, response to consumer complaints, and billing practices, but
without regard to the mix, quality and level of programming or other
services provided over the system, has been reasonable in light of
community needs;
(c)Â
The grantee has the financial, legal and technical ability to
provide the cable services, facilities and equipment as set forth
in the proposal; and
(d)Â
The grantee's proposals are reasonable to meet future cable-related
community needs and interests, taking into account the cost of meeting
such needs and interests.
(4)Â
In any administrative proceeding, the grantee and the public shall
be afforded adequate notice, and the grantee and the Township shall
be afforded fair opportunity for full participation, including the
right to introduce evidence, to require the production of evidence
and to question witnesses. A transcript shall be made of any such
proceeding.
(5)Â
At the completion of an administrative proceeding, the Township shall
issue a written decision granting or denying the proposal for renewal
based upon the record of such proceeding, and shall transmit a certified
copy of such decision to the grantee. Such decision shall state the
reasons therefor.
(6)Â
Any refusal to renew a franchise or denial of a proposal for renewal shall be based only on one or more adverse findings made with respect to the factors set forth in Subsection A(3), based upon the record of the proceeding. The Township may not base a refusal to renew or a denial of renewal upon the factors in Subsection A3(a) and A3(b) unless the Township has given a grantee notice of and an opportunity to cure violations or problems, or has waived its right to object to, or effectively acquiesced in, such violations and problems.
(7)Â
If a grantee's proposal for renewal has been denied by a final
decision of the Township made pursuant to this section, or if the
grantee has been adversely affected by a failure of the Township to
act in accordance with the procedural requirements of this section,
the grantee may appeal such decision or failure pursuant to the provisions
of the then-appertaining provisions of the Cable Act. The court may
grant appropriate relief if it finds that any action of the Township
is not in compliance with the procedural requirements of this section
or that the denial of the renewal proposal by the Township is not
in compliance with the procedural requirements of this section or
that the denial of the renewal proposal by the Township is not supported
by a preponderance of the evidence based on the record of the proceeding
conducted under this section.
(8)Â
Any decision of the Township 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.
(9)Â
Notwithstanding the provisions of this section, a grantee may submit a proposal for the renewal of a franchise at any time, and the Township may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a proposal for renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with Subsection A(1) through (7) of this section.
B.Â
If the current franchise expires by its own terms before the Township
and the franchise or before the completion of the formal renewal procedures
set forth in this section, the Township may extend the expiration
date of the current franchise until either a new franchise has been
granted or the Township's denial has been upheld by the court
of last resort. Notwithstanding anything to the contrary, nothing
in this section shall prevent the Township from renewing a franchise
by resolution and continuing to collect franchise fees so long as
a cable service provider continues to provide cable service within
the Township.
The provisions of this chapter are declared to be severable,
and if any section, subsection, sentence, clause or part thereof is,
for any reason, held to be invalid to unconstitutional by a court
of competent jurisdiction, such decision shall not affect the validity
of any remaining sections, subsections, sentences, clauses or part
of this chapter.
