[HISTORY: Adopted by the Board of Commissioners of Penn Township 2-20-2012 by Ord. No.
738. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Cable Television
Franchise Ordinance."
A.
When not
inconsistent with the context, words used in the present tense shall
include the future; words in the plural number include the singular
number; and words in the singular number include the plural number.
"May" will be interpreted as permissive and "shall" will be interpreted
as mandatory. Other terms not specifically defined will have the meanings
generally accorded to them in the cable television industry.
B.
For the
purposes of this chapter, the following terms, phrases, words and
their derivations shall have the meaning given herein.
C.
ADDITIONAL SERVICES
BASIC SERVICE
CABLE ACT
CABLE SERVICE
CABLE TELEVISION SYSTEM
COMPANY
DIGITAL BASIC
EXPANDED BASIC
FEDERAL COMMUNICATIONS COMMISSION or FCC
FRANCHISE
FRANCHISE FEE
GROSS REVENUE
PEG
STREETS AND RIGHTS-OF-WAY
SUBSCRIBER
The definitions as set forth in Chapter 142, the Penn Township Ordinance of Definition, are hereby incorporated into this chapter. In addition the following definitions shall apply:[1]
Any video programming whether broadcast in digital or analog
including expanded basic, pay channels, pay-per-view events for additional
charges above the charge to subscriber for basic services and provided
to subscribers over the cable television system, but not including
basic services.
Any service tier which includes the retransmission of local
broadcast signals.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992
and as further amended by the Telecommunications Competition and Deregulation
Act of 1996 and as it may be further amended.
The one-way or two-way transmission to or from subscribers
of video programming, or other cable system services (including music)
and subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming or service which
constitute cable services under the Cable Act.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable services which includes video programming
to multiple subscribers within the Township, excluding however, those
facilities excluded from such definition of cable system in Section
602 of the Cable Act.
Any person granted a franchise by Penn Township to provide
cable services in Penn Township.
Video services other than expanded basic, premium or pay-per-view
services that are offered as a tier in addition to basic service that
are transmitted by digital technology.
The tier of video programming including basic service and
additional satellite delivered programming.
The present federal agency of that name as constituted by
the Communications Act of 1934, or any successor agency created by
the United States Congress.
The nonexclusive right, privilege and authority granted by
this chapter to construct, maintain and operate a cable television
system in the Township, and shall permit, in addition to the privilege
to operate within the Township, the company to construct, maintain
and operate such cable television system with whatever wires or components
as are necessary, over, under or within all Township streets and rights-of-way.
Any tax, fee or assessment required to be made to the Township
by the company for the right to operate in the Township and which
are allowed by Section 622(g) of the Cable Act and its regulations.
Any and all revenue including, without limitation, cash and
credits, arising from or attributable to the operation of the cable
system to provide cable services within the Township, calculated in
accordance with generally accepted accounting principles (GAAP). Except
as otherwise set forth herein, "gross revenue" shall include, but
not be limited to, the following: basic service fees; additional services
fees charged to subscribers for any kind of cable service other than
basic service; franchise fees, fees charged to subscribers for any
optional, per-channel, or per-program services; installation, relocation,
disconnection, reconnection, and change in service fees; fees for
leased access channels; rental or sales of any and all subscriber
equipment including addressable and non-addressable converters and
remote control devices, the portion of revenues attributable to the
Township as provided in this chapter from any and all locally derived
advertising revenue (excluding agency commissions), revenue derived
from national, regional and local advertising received by the area
system; locally derived commissions received from home shopping channels'
sales generated in the Township; fees for any and all music services;
fees for video-on-demand, sales of program guides, amp purchases,
late payment fees, and NSF check charges. "Gross revenue" shall not
include revenue from refundable deposits, bad debts, state sales taxes
or any taxes on services furnished by the company and directly imposed
upon any subscriber or user by the Township, state, federal or any
other government user or any revenues upon which the Township is not
permitted by regulation or statute to levy a franchise fee.
The acronym for "public, educational and governmental," used
in conjunction with access channels, support and facilities.
The surface of, as well as the space above and below, all
streets, roadways, highways, freeways, avenues, lanes, alleys, courts,
places, squares, curbs, sidewalks, easements, rights-of-way or other
public ways in the Township which have been or may hereafter be dedicated
and opened to public use, or such other public property so designated
by law which shall within their proper use and meaning entitle Township
and the company to access thereon for the purpose of installing cable
transmission lines over poles, wires, cables, conductors, ducts, conduits,
vaults, amplifiers, appliances, attachments as may be necessary and
pertinent to the cable television system in the Township.
A person or entity that contracts with the company for, and
lawfully receives, Cable services distributed by the cable system.
A.
Grant of franchise.
(1)
Subject to the terms and conditions stated herein, the Township shall
have the authority to grant to any company, by resolution, a nonexclusive
and revocable franchise to construct, erect, repair, replace, operate
and maintain, for a period of up to 10 years, a cable television system
for the reception, origination, amplification, distribution and sale
of audio, video, digital and other forms of electronic signals in,
upon, along, across, above, over or under the streets and rights-of-way
in the Township, consisting of all poles, wires, cable, underground
conduits and other conduits and fixtures necessary for the maintenance
and operation in the Township of a cable television system with all
of the necessary and desirable appliances and appurtenances pertaining
thereto. The rights herein granted for the purposes herein set forth
shall not be exclusive, and the Township reserves the right to grant
a similar use of said streets and rights-of-way to any person at any
time during the period of this franchise.
(2)
Notwithstanding this authority, the company shall obtain all necessary
government permits, including but not limited to Township subdivision
and land development, zoning and building permits, where applicable
for any disturbance of public places and rights-of-way under the jurisdiction
of the Township, including property over which the Township has a
sufficient easement or right-of-way, to construct, erect, repair,
replace, operate and maintain any facility for the purpose of reception,
transmission, amplification, origination, distribution or redistribution
of video, audio, digital, and other electronic signals and impulses.
B.
Reservation of authority. Nothing in this chapter shall:
(1)
Abrogate
the rights of the Township to perform any public works or public improvements
of any description;
(2)
Be
construed as or waiver of any codes or ordinances of general applicability
promulgated by the Township; or
(3)
Be
construed as a waiver or release of the rights of the Township in
and to the streets and rights-of-way.
C.
Exercise of police powers. All rights and privileges granted hereby
are subject to the police powers of Township to adopt and enforce
local laws and ordinances, rules and regulations necessary to the
health, safety and general welfare of the public. The Township shall
not use its legislative powers to alter or amend the provisions of
this chapter subsequent to its effective date in such a manner as
to have a material adverse effect on the rights of the company herein
or to pass ordinances that are only applicable to the company.
A.
Franchise fee.
(1)
The company shall pay to the Township an amount equal to 5% of the
gross revenue received from the operation of its cable television
system in the Township. If the maximum franchise fee allowed by the
FCC is increased or reduced, then the amount of said fee shall conform
to the federal law or regulations, so that the Township shall receive
an annual franchise fee at the highest rate allowed by federal law
or regulation.
(2)
Notwithstanding any other provisions of this chapter, it is the intention
of the company and Township that Township shall receive an annual
franchise fee at the highest rate and levied upon all sources of revenue
from all services upon which the Township is allowed by law to levy
a franchise fee. If, during the term of this chapter, federal law
is amended or a determination is made by the FCC or a court of competent
jurisdiction, which decision is a final order not subject to further
appeal, to permit local franchising authorities to collect franchise
fees or revenues derived from services not currently subject to franchise
fees or included in the definition of gross revenues, the Township
may notify the company in writing that it wishes to collect franchise
fees or revenues attributable to such services 60 days after the Township
gives notice, such revenues shall be considered part of gross revenue
and franchise fees shall be collected and remitted on such revenues.
The company shall notify the Township at the time of such change in
the federal law; provided, however, that the failure to notify shall
not be a material default under this chapter and the Township's
remedy shall be to collect franchise fees back to the date of the
change in the law, but in no event for more than one year.
B.
Allocation of revenue. The Township's annual franchise fee shall be determined by adding the sums obtained in Subsection B(1) and (2) below:
(1)
The franchise fee percentage from § 117-4A above times the gross revenue received by the company from subscribers derived from the operation of the cable television system within the Township.
(2)
The franchise fee percentage from § 117-4A above times any nonsubscriber revenue received by the company that is not directly allocable to the Township; the company shall calculate said revenue as follows:
(a)
The percentage set forth above times the nonsubscriber revenues attributable to the Township where revenues received by the company are not directly related to the number of subscribers using a service of the cable system within the Township (i.e., revenues from advertising, home shopping channels or similar revenue-based programs). For purposes of this Subsection B(2)(a), nonsubscriber revenues attributable to the Township shall be determined by (i) dividing the number of Township Subscribers by the total of Township plus non-Township subscribers in the cable television system and (ii) multiplying the quotient obtained in Subdivision (i) by the total revenues received by the company which were not directly related to the number of subscribers using a service of the cable system in the Township.
(b)
The percentage set forth above times nonsubscriber revenues which are attributable to the Township where the revenues received by the company are directly attributable to the number of customers receiving a particular service. For purposes of this Subsection B(2)(b), nonsubscriber revenues attributable to the Township shall be determined by (i) dividing the number of Township customers and non-Township customers receiving the service and (ii) multiplying the quotient obtained in Subdivision (i) by the total revenues received by the company which were attributable to providing said service.
C.
Payment of franchise fees. Payment of the aforesaid franchise fee
shall be made on a quarterly basis within 30 days after the end of
March, June, and September, and within 60 days after the last day
of December of each year of service. Failure to pay after 10 days'
notice of default shall result in the addition of a penalty charge
of 8%.
D.
Quarterly franchise fee report. The company shall provide with each
quarterly franchise fee payment a written report containing an accurate
statement of the gross revenues received for the quarter in connection
with the operation of the company's cable system in the Township
and a brief report showing the basis for computation of fees. The
report will contain a line item for every source of revenue received
for which a franchise fee is due and the amount of revenue from each
source. The report shall be certified by a financial representative
of the company.
E.
Certification.
(1)
Within 90 days after the close of each calendar year, the company
shall provide to the Township a certification by a financial officer
of the company to the correctness and accuracy of the franchise fee
payments made during the year. Upon reasonable prior written notice
during normal business hours at the company's principal office
in York County, Pennsylvania, the Township shall have the right to
inspect and audit the company's financial records used to calculate
the Township's franchise fee, provided, however, that any such
inspection shall take place within two years from the date the Township
receives such payment; after which period any such payment shall be
considered to be final.
(2)
Upon the completion of any such audit by the Township, the Township
shall provide to the company a final report setting forth the Township's
findings in detail, including any and all substantiating documentation.
In the event of an alleged underpayment, the company shall have 30
days from the receipt of the report to provide the Township with a
written response agreeing to or refuting the results of the audit,
including any substantiating documentation. Based on these reports
and responses, the parties shall agree upon a "finally settled amount."
For purposes of this section, the term "finally settled amount(s)"
shall mean the agreed upon underpayment, if any, to the Township by
the company as a result of any such audit. If the parties cannot agree
on a final settlement amount, the parties shall submit the dispute
to a mutually agreed upon mediator within 60 days of reaching an impasse.
In the event an agreement is not reached at mediation, either party
may bring an action to have the disputed amount determined by a court
of law.
(3)
Any finally settled amount(s) due to the Township as a result of
such audit shall be paid to the Township by the company within 30
days from the date the parties agree upon the finally settled amount.
The company shall pay interest on the amount of the underpayment at
the prime rate until paid if the underpayment was less than 3% of
the amount owed or interest at the rate of prime plus 7.5% until paid
if the underpayment is greater than 3% of the amount owed. If the
audit discloses any underpayment to the Township, the company shall
contribute up to a maximum of $3,000 to the cost of such audit. Payment
shall be paid within 30 days after such audit and recomputation. Once
payment is made the Township shall have no further rights to audit
or challenge the payment for that period.
A.
Cable television system.
(1)
The company shall operate, maintain, construct and extend the cable
television system to provide high quality signals and reliable service
throughout all parts of the Township. The cable television system,
and all construction and maintenance thereof, shall meet or exceed
any and all technical performance standards of the FCC, the National
Electrical Safety Code, the National Electric Code, and any other
generally applicable federal laws and the laws, ordinances and construction
standards of the Commonwealth of Pennsylvania and the Township.
(2)
The cable television system shall have minimum operating capability
of 750 MHz, with two-way capability. The system shall be a hybrid
fiber/coax distribution, utility fiber optic trunk and coaxial cable
for feeder lines and house drops with accompanying optical transmitters,
receivers and amplifiers. The cable television system shall be capable
of continuous twenty-four-hour daily operation, without severe material
degradation of signal, except during extremely inclement weather or
immediately following extraordinary storms that adversely affect utility
services or damage major system components.
B.
State of the art.
(1)
The technology of cable systems is an evolving field. The company's
cable system in the Township shall be capable of offering cable services
that are comparable to other cable systems served by the same hub
site, pursuant to the terms of this section. The Township may send
a written notice to the company, not to exceed one request every three
years, requesting information on cable services offered by such comparable
systems, i.e., a neighboring municipality where service is provided
by a cable system owned and managed by the company or its Affiliated
entities in the County of York in the Commonwealth of Pennsylvania
where cable service is provided from the same hub site that services
both the Township and the neighboring municipality.
(2)
If the identified cable services are being offered by the company
and/or its affiliated entities to at least 40% of the total subscribers
in the other municipalities served from the same hub site, then the
Township may request that the company make such cable services available
in the Township. Upon receipt of said request, Comcast shall enter
into good faith discussions with the Township concerning deployment
of such cable services, excluding experimental and pilot projects.
The discussions shall take into consideration the benefits from the
provision of such cable services, the cost of implementing them in
the Township, the technical and economic feasibility of implementing
such improvements, and the impact, if any, on subscriber rates. If
three years or less are remaining in the franchise term, then an extension
of the franchise term may be required as a condition to adding any
such cable services to the cable system in order to provide the company
with an ample opportunity to recoup its investment in any necessary
improvements.
C.
Area to be served.
(1)
In areas where aerial construction is permitted, the company shall
construct all sections which are contiguous to the existing system
and which shall have at least 25 homes per mile, but densely populated
areas shall be addressed so that population centers are served. In
areas where underground construction is required, the company shall
construct all sections, which are contiguous to the existing system
and have at least 30 homes per mile.
(2)
Installation costs shall conform to the Cable Act and regulations
there under. Any dwelling unit within 150 feet aerial or 150 feet
underground of the cable plant shall be entitled to a standard installation
rate. For any dwelling unit in excess of 150 feet aerial or underground,
the company shall extend cable service at a rate not to exceed the
company's actual cost of installation from its main distribution
system.
(3)
At the time of cable television system construction, if all of the
transmission and distribution facilities of all of the respective
public or municipal utilities in any area of the Township are underground,
the company shall place its cable television system transmission and
distribution facilities underground, provided that such underground
locations are actually capable of accommodating the company's
cable and other equipment without technical degradation of the cable
television system's signal quality. In any region(s) of the Township
where the transmission or distribution facilities of the respective
public or municipal utilities are both aerial and underground, the
company shall have the discretion to construct, operate, and maintain
all of its transmission and distribution facilities, or any part thereof,
aerially or underground. Nothing in this chapter shall be construed
to require the company to construct, operate, or maintain underground
any ground-mounted appurtenances such as customer taps, line extenders,
system passive devices, amplifiers, power suppliers, pedestals, or
other related equipment.
D.
Maintenance and repair.
(1)
The distribution facilities of the company shall be at all times
maintained in good and safe condition and shall be constructed and
maintained so as not to interfere with television reception by inhabitants
of the Township not using the company's services.
(2)
In the maintenance and operation of its cable television transmission
and distribution system in the Township and in the course of construction
or addition to its facilities, the company shall proceed so as to
cause the least possible inconvenience to the general public and any
opening or obstruction in the streets or other public places made
by the company in the course of its operations shall be guarded and
protected at all times by the placement of adequate barriers, fencings
or boardings, the bounds of which during the periods of dusk and darkness
shall be designated by warning lights of approved types.
(3)
Whenever the company shall take up or disturb any pavement, sidewalk
or other improvement of any street, avenue, alley, highway or other
public place, the same shall be replaced and the surface restored
at the company's expense in as good condition as before entry
as soon as practicable without unnecessary delay. The company shall
comply with any and all Township regulations concerning the disturbance
or cutting of sidewalks, streets or similar improvements.
(4)
The location of any poles, anchors, wires, cables, conduit, vaults,
laterals and other fixtures, or the erection, laying or removal of
same, shall not interfere unreasonably with ordinary travel and/or
the use of the streets, alleys, bridges, public ways or electrical
installations of the Township.
(5)
Upon written notice from the Township, the company shall remedy a
safety deficiency within 48 hours of receipt of written notice and
shall notify the Township when the deficiency has been corrected.
E.
Permits. The company shall apply to the Township for all required
permits and shall not undertake any construction without receipt of
such permits, issuance of which shall not be unreasonably withheld
or delayed by the Township. The company shall pay any and all required
permit fees. This section is not intended to require permits for normal
repair and maintenance of the cable television system that does not
involve disturbance of paved surfaces or excavation in the public
rights-of-way. This section does not amend or supersede the Subdivision
and Land Development Ordinance, the Zoning Ordinance, the Building
Permit Ordinance, the Uniform Construction Code and the enabling ordinance
adopting it, or the Property Maintenance Code and the ordinance adopting
it,[1] and such ordinances shall apply to the company in accordance
with their terms and in accordance with state laws and regulations.
F.
Relocation of cable television system.
(1)
The rights and privileges granted herein to the company shall not
be in hindrance to the right of the Township or other governmental
agency having jurisdiction, to perform or carry on any public works
or public improvement. Should the company's cable television
system interfere with any construction or repair by the Township of
public works or improvements, the company shall, at its own expense,
protect or relocate its cable television system or part thereof, as
directed by Township. If funds are available from sources other than
the Township to compensate the company for such relocation, then the
company shall not be required to relocate its cable television system
or part thereof at its own expense.
(2)
The company shall, at the expense of any person other than the Township
requesting said temporary relocation, temporarily raise, lower or
remove its wires to permit the improvement of property. In such event,
the company shall be given not less than 14 days advance written notice
to arrange for the temporary wire changes.
G.
Clear access ways. The company may trim trees or other vegetation
within the streets and rights-of-way of the Township to prevent their
branches or leaves from touching or otherwise interfering with its
wires, cables or other structures. The company shall obtain permission
of the owner of any private land, tree or other vegetation before
it trims or prunes the same, unless otherwise permitted by the right-of-way
agreement.
H.
Emergency power. The cable television system shall incorporate equipment
capable of providing standby power to the headend and the cable television
system for a minimum of two hours upon failure of the power furnished
by the power company. The headend shall be the location where the
company has located its signal reception and retransmission capabilities.
I.
Emergency override. The cable television system shall incorporate
emergency audio override capabilities in compliance with the applicable
FCC rules, for use in the event of an emergency or vital public information
situation. The PEG access channel will be available for transmission
by an alphanumeric character generator.
J.
Pole attachments.
(1)
The poles and posts used for the company's cable television
system lines shall be those erected by the company or by such other
persons, firms or corporations.
(2)
The Township shall have the right, where aerial construction exists,
during the life of this franchise, free of charge (but at its expense
for construction), of maintaining upon the poles of the company, if
any, within the Township limits such wire and pole fixtures as are
necessary for a police and fire alarm system, such wires and fixtures
to be erected and maintained to the satisfaction of the company. The
Township, in its use and maintenance of such wires and fixtures, shall
at all times comply with the rules and regulations of the company
so that there may be a minimum danger of contact or conflict between
the wires and fixtures of the company and the wires and fixtures used
by the Township.
A.
General service obligations. The company shall provide within the
Township a cable television system which will be capable of carrying
cable services. The company shall make cable service available to
every residential dwelling passed by the cable television system.
B.
No unfair discrimination. Neither the company nor any of its employees,
agents, representatives, contractors, subcontractors, or consultants,
nor any other person, shall discriminate or permit discrimination
between or among any persons in the availability of cable services
provided in connection with the cable television system in the Township.
It shall be the right of all persons to receive all available services
provided on the cable television system so long as such person's
financial or other obligations to the company are satisfied. Nothing
contained herein shall prohibit the company from offering bulk discounts,
promotional discounts, package discounts, or other such pricing strategies
as part of its business practice.
C.
Cable television system repairs. Subject to the force majeure provisions of § 117-15 of this chapter and routine maintenance, the company shall use its best efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. For the purpose of construction, routine repairing or testing of the cable system, the company shall use its best efforts to interrupt service only during periods of minimum use. When necessary service interruptions of more than 24 hours can be anticipated, the company shall notify subscribers in advance of such service interruption. 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 it will cause the least amount of inconvenience to its subscribers unless such interruption is unforeseen and immediately necessary.
D.
Repair service. The company's repair and maintenance personnel
shall be required to maintain the cable television system in compliance
with all applicable technical standards of the FCC as published in
Subpart K of 47 CFR § 76.601 et seq. The company shall maintain
a toll-free and/or locally listed telephone number available to subscribers
24 hours per day, seven days per week. Trained company representatives
shall be available to respond to service requests during the hours
of 7:00 a.m. to 10:00 p.m., after which the line may be answered by
an answering service or an automated response system. The company
shall respond to requests for service within 48 hours of receipt of
such requests, notwithstanding an additional day (i.e., 24 hours)
to respond for each intervening Saturday, Sunday and/or holiday.
E.
Prohibition against reselling service. No person shall resell, without
the express prior written consent of the company, any cable television
service, program or signal transmitted over the cable television system
by the company.
F.
Installation and service calls.
(1)
Standard installations shall be performed within seven business days
after an order has been placed, weather permitting. Standard installations
are those that are located within 150 feet from the existing distribution
system.
(2)
Upon scheduling of appointments with the customer for installations,
service calls, or other activities, the company shall provide subscriber
with either a specific time or an "appointment window" of not more
than four hours during normal business hours. The company may schedule
service calls and installation activities outside normal business
hours for the express convenience of the subscriber. If the company
schedules an appointment with a subscriber and the company fails to
arrive at the subscriber's premises within the scheduled window
of time for reasons not caused by the subscriber, the company shall
not charge the subscriber the standard installation or service charge.
A.
Customer service standards. The Township hereby adopts the customer
service standards set forth in Part 76, § 76.309 of the
FCC's rules and regulations, as amended. The company shall comply
in all respects with the customer service requirements established
by the FCC.
B.
Customer bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to customers, and in a way that (i) is not misleading; and (ii) does not omit material information. Notwithstanding anything to the contrary in Subsection A above, the company may, in its sole discretion, consolidate costs on customer bills as may otherwise be permitted by Section 622(c) of the Cable Act [47 U.S.C. § 542(c)]. The bills shall not contain the Township's address or telephone number.
C.
Credit for service outages. In the event that there is a cable service
interruption to any subscriber for six or more consecutive hours,
upon receipt of a written or credible oral request, the company shall
grant such subscriber a pro rata credit or rebate, on a daily basis
of that portion of the service charge during the next consecutive
billing cycle, or, at its option, apply such credit to any outstanding
balance that is currently due.
D.
Notices.
(1)
The company shall provide written notice to each subscriber upon
initial subscription, at intervals not more than one year thereafter
to each subscriber and the Township, and at any time upon request,
on each of the following areas:
(a)
Products and services offered;
(b)
Prices and options for programming services and conditions of
subscription to programming and other services;
(c)
Installation and service maintenance policies;
(d)
Channel positions and programming carried on the cable system;
(e)
Billing and customer complaint procedures;
(f)
Policy and procedures for disconnecting or terminating a subscriber's
service;
(g)
The company's address, telephone number and office hours;
and
(h)
A notice of subscriber privacy rights as required by federal
law.
(2)
The company shall notify subscribers in writing of any changes in
rates, programming services or channel positions a minimum of 30 days
in advance of such changes. The company shall not be required to provide
prior notice to subscribers of any rate change that is the result
of a regulatory fee, franchise fee or any other fee, tax, assessment
or charge of any kind imposed by any federal agency, the Commonwealth
of Pennsylvania or the Township on the transaction between the company
and the subscriber.
(3)
The company shall maintain a file available to the public containing
all written notices provided to subscribers pursuant to the requirements
contained in 47 CFR § 76.305 as set forth on the effective
date of this chapter.
E.
Customer complaint procedures. The company shall establish clear
written procedures for resolving all customer complaints, which shall
include at least the following:
(1)
The company shall provide the customer a written response to a written
complaint within 10 days of its receipt and shall communicate a final
resolution of the complaint in writing within 30 days of receipt of
the complaint. Such response shall include the results of its inquiry
into the subject matter of the complaint, its conclusion based on
the inquiry, and its decision in response to the complaint.
(2)
If the Township is contacted directly about a customer complaint,
it shall notify the company in writing. When the company receives
such notification, the time period for the company to respond as required
above shall commence.
(3)
Any subscriber who, in good faith, disputes all or part of any bill
sent by the company has the option of withholding the disputed amount,
without finance charges, the initiation of collection procedures or
disconnection until the company has investigated the dispute in good
faith and has made a determination that the amount is owed provided
that:
(a)
The subscriber provides a written complaint to the company in
a timely fashion and includes identifying information;
(b)
The subscriber pays all undisputed charges; and
(c)
The subscriber cooperates in determining the appropriateness
of the charges in dispute.
(d)
Any complaint received in an e-mail message, or through the
company website shall be a "written complaint" for purposes of this
section. Any person shall be given instructions on how to file a written
complaint by letter, e-mail and on the company website.
(4)
The company shall maintain a record of customer written complaints, which shall contain the date each such complaint is received, the name and address of the affected subscriber, a description of the complaint, the date of resolution, and a description of the resolution. Subject to the privacy protections of § 117-7G herein, the company shall provide such information (not including names of subscribers) to the Township upon specific written request. The company shall be obligated to retain such complaint information for a period of two years.
(5)
The company shall submit to the Township, upon request, a report
showing the number of complaints that have generated a work order
and/or necessitated a response ("trouble calls") received during a
specified reporting period, and the general nature of the complaints
generating the calls.
F.
Disconnection. The company may disconnect or terminate a subscriber's
service for cause:
(1)
If at least 30 days have elapsed from the due date of the bill in
which subscriber has failed to pay; and
(2)
If the company has provided at least 10 days' written notice to the
affected subscriber prior to disconnection, specifying the effective
date after which cable services are subject to disconnection; and
(3)
If there is no pending written dispute regarding the bill to which
the company has not issued a final decision in writing; or
(4)
If at any time and without notice the company determines in good
faith that subscriber has tampered with or abused the company's
equipment or is engaged in theft of cable service.
G.
Privacy.
(1)
The company shall protect and abide by the rights of privacy of every
subscriber and shall not violate such rights through the use of any
device or signal associated with the cable system. The company shall
at all times comply with the privacy provisions of Section 631 of
the Cable Act and all other applicable federal, state and generally
applicable local privacy laws and regulations.
(2)
The company shall be responsible for carrying out and enforcing such
privacy policy, and shall at all times maintain adequate physical,
technical and administrative security safeguards to ensure that personal
subscriber information is handled and protected strictly in accordance
with this policy and all applicable laws and regulations.
(3)
The company shall notify all third parties who offer cable services
in conjunction with the company, or independently over the cable television
system, of the subscriber privacy requirements contained herein.
(4)
Neither the company nor its designee shall tap or monitor, arrange
for the tapping or monitoring, or permit any person to tap or monitor,
any cable, line, signal, input device, or subscriber outlet or receiver
for any purpose, without the prior written authorization of the affected
subscriber or user; provided, however, that the company may conduct
system-wide or individually addressed "sweeps" solely for the purpose
of verifying system integrity, checking for illegal taps, controlling
return-path transmission, billing for pay services or monitoring channel
usage in a manner not inconsistent with the federal law. The company
shall report to the affected parties any instances of monitoring or
tapping of the cable system or any part thereof, of which it has knowledge,
whether or not such activity has been authorized by company. The company
shall not record or retain any information transmitted between a subscriber
or user and any third party, except as required for lawful business
purposes.
(5)
Except as permitted by Section 631 of the Cable Act as amended, neither
the company nor its designee nor its employees shall make available
to any third party, including the Township, information concerning
the viewing habits or subscription package decisions of any individual
subscriber. If a court authorizes or orders such disclosure, the company
shall notify the subscriber not less than 20 calendar days prior to
disclosure, unless such notification is otherwise shortened or prohibited
by applicable law or the court in which case the maximum notification
shall be given.
(6)
Upon a request by a subscriber, the company shall make available
for inspection at a reasonable time and at its local principal place
of business all personal subscriber information that the company maintains
regarding said subscriber. The company shall ensure that all information
related to billing and service requests is accurate and up to date
and shall promptly correct any errors upon discovery.
(7)
The company shall not make its subscriber list or lists, or any portion
thereof, available to any person or entity, with or without remuneration,
except where expressly permitted by applicable law.
A.
Right to regulate rates. As a franchising authority certified by
the FCC, the Township has the right to regulate cable rates and service
to the full extent authorized by applicable federal, state, and local
laws.
B.
Right to inspect.
(1)
The Township shall have the right, upon 10 business days' written
notice and during normal business hours, to inspect all documents,
records and other pertinent information maintained by the company
which relate, directly or indirectly, to the providing of cable services
in the Township or the company's compliance with the terms of
this chapter. Such inspection shall occur at the company's principal
office in York County, Pennsylvania.
(2)
In addition, the company shall maintain for inspection by the public
and the Township all records required by the FCC and as specified
in 47 CFR § 76.305, in the manner specified therein.
(3)
Notwithstanding anything to the contrary set forth herein, all information
specifically marked by the company as proprietary or confidential
in nature and furnished to the Township or its designated representatives
shall be treated as confidential in conformity with Pennsylvania law.
Confidential information shall include but not be limited to any financial
records or subscriber records provided by the company. Information
and documentation marked by the company as proprietary or confidential
shall include a brief written explanation as to its proprietary nature
or confidentiality. The Township and its officially designated representatives
shall treat any such information or records which the company reasonably
deems would provide an unfair advantage for the company's competitors
(e.g., system design maps, engineering plans, and programming contracts,
etc.) as confidential and disclose it only to Township employees,
agents, or representatives that have a need to know or in order to
enforce the provisions of this chapter. In the event a request is
made by an individual or entity, not an employee, agent or representative
of the Township acting in their official capacity, for information
related to the franchise and marked by the company as confidential
and/or proprietary, the Township shall immediately notify the company
of such request and permit the company to take whatever action the
company deems necessary to protect its interests before providing
documents or access to documents to the requestor. The company shall
not be required to provide subscriber information in violation of
Section 631 of the Cable Act [47 U.S.C. § 551], or information
which is not relevant to regulation of the franchise (e.g., employee
files, tax returns, etc.).
C.
Right to conduct compliance review. The Township or its representatives
may conduct a full compliance review and hold public hearings with
respect to whether the company has complied with any material terms
of this chapter so long as it provides the company with 30 days' written
notice in advance of the commencement of such reviews and public hearings.
D.
Government reports. Upon written request, the company shall provide
to the Township copies of any and all communications reports, documents,
pleadings and notifications of any kind which the company or any of
its affiliated entities have submitted to any federal, state or local
regulatory agencies, courts or other governmental bodies if such documents
relate exclusively to the company's cable system within the Township.
The company shall provide copies of such documents no later than 30
days after their filing, mailing or completion. The company shall
not claim confidential, privileged or proprietary rights to such documents
unless such documents have been determined to be confidential, privileged
or proprietary by a court of competent jurisdiction or a federal or
state agency.
E.
Technical standards. The company shall comply with all applicable
technical standards of the FCC as published in Subpart K of 47 CFR
§ 76.601 et seq. To the extent those standards are altered,
modified, or amended during the term of this chapter, the company
shall comply with such altered, modified or amended standards within
a reasonable period after such standards become effective. The Township
shall have the right upon written request to obtain a copy of the
results of tests and records required to be performed by the FCC's
rules and regulations.
F.
Reserved authority. The Township reserves the regulatory authority
arising from the Cable Act, any amendments thereto and any other relevant
federal, state or local laws or regulations.
A.
Company insurance. The company shall maintain during the term of
the franchise such insurance as will protect it and the Township from
any claims which may arise from the company's ownership, construction,
repair, maintenance or operation of the company's cable television
system in the Township, such insurance policies to have the following
overages and limits:
(1)
Workers' compensation coverage as required by statute.
(2)
Property insurance on all insurable company assets.
(3)
General liability insurance with combined single limit for bodily
injury, personal injury, death and property damage in an amount of
at least $3,000,000 per occurrence (which may be supplied by a combination
of primary and excess policy limits), and the company's liability
insurance shall include contractual liability, including so much of
the indemnity specified herein as is reasonably insurable.
B.
Additional insured. The liability insurance policy shall name Township
as an additional insured and the Township shall be provided 30 days
notice prior to cancellation of any coverage.
C.
Evidence of insurance. Not later than 30 days after the effective
date of a grant of a franchise under this chapter, the company shall
furnish to Township current certificates of insurance demonstrating
compliance with the insurance coverage requirements of this section.
D.
Authorized carrier. All insurance coverage shall be with a company
authorized to do business in the Commonwealth of Pennsylvania.
E.
Indemnification. The company shall indemnify and hold the Township
harmless with respect to the company's construction; maintenance
or operation of the cable television system from and against any and
all expenses, losses and claims, demands, payments, suits, actions,
and judgments, other than as a result of Township's negligence
or intentional acts, including reasonable attorney's fees. In
the event of the commencement of any action against the Township,
the Township will give notice thereof to the company within 10 days
after the Township is formally served in any such action, and the
company shall have the right to select counsel for the defense of
such action at no cost to the Township. The Township's failure
to give timely notice shall relieve the company of its obligation
under this section if such failure to give notice causes prejudice
to the company's ability to defend any such claim. Settlement
of any action or claim shall be made by the company or its counsel
without the approval of the Township unless the Township has an affirmative
obligation as part of the settlement. Further, the Township's
approval is not required when the company's defense is provided
under the terms of an insurance policy that does not allow for the
insured's approval of settlements. The Township will cooperate
with the company as reasonably required for the defense of any such
action.
A.
PEG channels.
(1)
Use of channel capacity for public, educational and governmental
("PEG") access shall be provided in accordance with federal law, 47
U.S.C. § 531, and as further set forth below. The company
does not relinquish its ownership of or ultimate right of control
over a channel by designating it for PEG use. A PEG access user, whether
an individual, educational or governmental user, acquires no property
or other interest by virtue of the use of a channel so designated,
and may not rely on the continued use of a particular channel number,
no matter how long the same channel may have been designated for such
use. The company shall not exercise editorial control over any public,
educational, or governmental use of channel capacity, except the company
may refuse to transmit any public access program or portion of a public
access program that contains obscenity, indecency, or nudity pursuant
to Section 611 of the Cable Act. The Township shall be responsible
for developing, implementing, interpreting and enforcing rules for
PEG access channel use which shall insure that PEG access channel(s)
and PEG access equipment will be available on a first-come nondiscriminatory
basis.
(2)
The company shall designate capacity on one channel for a public access channel to be used for public access video programming provided by the Township or its designee, such as a public access organization. A public access channel may not be used to cablecast programs for profit, political or commercial fund-raising in any fashion. Unused capacity may be utilized by franchisee subject to the provisions set forth in Subsection A(5) below.
(3)
The company shall designate capacity on one channel for an educational access channel to be used for educational access video programming provided by the Township or designated educational institution. An educational access channel may not be used to cablecast programs for profit, political or commercial fund-raising in any fashion. Unused capacity may be utilized by franchisee subject to the provisions set forth in Subsection A(5) below.
(4)
The company shall designate capacity on one channel for a governmental access channel to be used for government video programming provided by the Township. A government access channel may not be used to cablecast programs for profit, political or commercial fund-raising in any fashion. Unused capacity may be utilized by the company subject to the provisions set forth in Subsection A(5) below.
(5)
In the event the Township or other PEG access user elects not to
fully program its channel(s), the company may reclaim any unused time
on those channels.
(6)
The Township and/or its access user designees shall indemnify the
company for any liability, loss, or damage it may suffer due to violation
of the intellectual property rights of third parties or arising out
of the content of programming shown on the access channel and from
claims arising out of the Township's access channel rules or
administration.
(7)
Other than the access support specifically agreed to in this chapter,
the company shall not be required to provide technical or production
staff, or obtain equipment or studio facilities for educational and
governmental access channel programming.
B.
Service to community facilities. The company shall provide one feeder cable to the administration building and one cable connection to each public building so that the administration building and each public building can receive basic and expanded basic services. No charge shall be made for installation or service except that the company may charge for installation and service for more than one drop in each building or any such connection beyond a "standard installation" in accordance with installation of service as defined in § 117-5C(2) hereof.
A.
Channel capacity. The company shall meet or exceed programming and
channel capacity requirements set forth in the Cable Act consistent
with the requirements of federal regulation and law.
B.
Broadcast channels. The company shall make available to all residential
subscribers a basic service tier including, but not limited to, all
signals of domestic television broadcast stations entitled to "must
carry" status under FCC rules, and any initial analog public, education
and governmental programming channels now in existence or required
by this chapter.
A.
Neither the company nor any other person may transfer the cable system
or the franchise without prior written notice to the Township and
compliance with the requirements of the Cable Act including submission
to the Township of FCC Form 394. No prior notice shall be required,
however, for: (i) a transfer in trust, by mortgage, hypothecation,
or by assignment of any rights, title, or interest of the company
in the franchise or in the cable system in order to secure indebtedness,
(ii) a transfer to an entity directly or indirectly owned or controlled
by Comcast Corporation, or (iii) the sale, conveyance, transfer, exchange
or release of less than 50% of its equitable ownership unless the
sale, conveyance, transfer, exchange or release shall when aggregated
with prior transfers exceed 50%. Within 30 days of receiving a notice
of transfer, the Township may, in accordance with FCC rules and regulations,
notify the grantee in writing of the additional information, if any,
it requires regarding the legal, financial, and technical qualifications
of the transferee or new controlling party.
B.
The consent of the Township to any transfer or assignment as described
above shall not be effective until the proposed transferee or assignee
shall have executed a legally binding document stating that it shall
be bound by all of the terms and conditions contained in this chapter.
The company shall have the right to prescribe service rules
and regulations for the conduct of its business not inconsistent with
the provisions of this chapter or any ordinance of the Township.
A.
Notice of violation or default. In the event the Township believes
that the company has not complied with the material terms of this
chapter, it shall notify the company in writing with specific details
regarding the exact nature of the alleged noncompliance or default.
B.
Company's right to cure or respond. The company shall have 30
days from the receipt of the Township's written notice: (i) to
respond to the Township, contesting the assertion of noncompliance
or default; or (ii) to cure such default; or (iii) 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 Township of the steps being taken and the projected
date that the cure will be completed.
C.
Public hearings. In the event the company fails to respond to the
Township's notice or in the event that the alleged default is
not remedied within 30 days or the date projected by the company,
the Township shall schedule a public hearing to investigate the default.
Such public hearing shall be held at the next regularly scheduled
meeting of the Township that is scheduled at a time that is no less
than 30 business days therefrom. The Township shall notify the company
in writing of the time and place of such meeting and provide the company
with a reasonable opportunity to be heard. This shall include the
ability to introduce evidence, to question witnesses, and to respond
to any notice of default. Such notice shall state the exact nature
of the default. The Township, after the public hearing and upon finding
the existence of a default, may either declare that the franchise
granted under this chapter shall be terminated and revoked, excuse
such grounds upon a showing by the company of mitigating circumstances,
seek performance of any provision that reasonably lends itself to
such remedy or assess a lesser penalty. Within 30 days, the Township
shall send the decision to the company by certified mail or by a reputable
overnight courier.
D.
In addition to the other rights, powers and remedies retained by
the Township under this chapter, the Township, after a public hearing
and an opportunity to be heard and present evidence as set forth above,
reserves the separate and distinct right to revoke the grant of the
franchise if:
(1)
It is demonstrated that the company practiced any fraud or deceit
upon the Township in its operation of the cable system or any other
activities; or
(2)
The company seeks, or an involuntary case is brought against the
company, seeking liquidation, reorganization, or other relief under
any bankruptcy, insolvency or other similar law or seeking the appointment
of a trustee, receiver, custodian or other similar official of a substantial
part of the company's property and such proceeding shall remain
unstayed and not dismissed for a period of 120 days.
The company shall not be liable or responsible for any delay
or failure of performance of its franchise if prevented from doing
so by acts of God including flood, storms, fires, explosions, strikes,
lockouts, riots, wars, whether or not declared, insurrections, epidemics
or any law, rule or acts of any court or instrumentality whether federal,
state or municipal government or any causes beyond its control, provided
that the same is not willfully done or brought about for the purpose
of excusing failure or omissions to perform under the franchise and
providing that using reasonable care, the same could not have been
avoided by the company. In the event the company is rendered unable
to perform in whole or in part, the company shall begin to perform
its franchise as soon as is practical after such conditions cease
to exist.
A.
For the violation of any of the following provisions of this chapter, liquidated damages shall be paid by the company to the Township; provided, however, that liquidated damages cannot be imposed unless and until the Township has followed the notice and cure provisions in this chapter. Any such liquidated damages shall only be assessed after a full finding of default according to the provisions of § 117-14, effective beginning as of the date of a public hearing on the notice of default scheduled by the Township in accordance with § 117-14C above. On an annual basis from the effective date, the company shall not be liable for liquidated damages that exceed $5,000:
(1)
For failure to operate and maintain the cable system, in accordance with § 117-5 herein, $100 per day, for each day that such noncompliance continues;
B.
Such liquidated damages shall be in addition to, and not a limitation
upon, any other provisions of this franchise and applicable law, including
revocation, or any other statutorily or judicially imposed penalties
or remedies; provided, however, that in the event that the Township
collects liquidated damages for a specific breach pursuant to this
section, the collection of such liquidated damages shall be deemed
to be the exclusive remedy for said specific breach. Such damages
shall not, however, be a substitute for the future specific performance
by the company but shall be in addition to such performance.
C.
The company shall have 30 days from receipt of written notice from
the Township to pay the liquidated damages; provided, however, that
the company may appeal (by pursuing administrative, judicial or other
relief) any assessment of liquidated damages within 30 days of receiving
written notice of the assessment.
D.
Each of the above-mentioned cases of noncompliance in this section
shall result in damage to the Township, its residents, businesses
and institutions, compensation for which will be difficult to ascertain.
The company agrees that the liquidated damages in the amounts set
forth above are fair and reasonable compensation for such damage.
The company agrees that said foregoing amounts are liquidated damages,
not a penalty for forfeiture, and are within one or more exclusions
to the term "franchise fee" provided by Section 622(g)(2)(A) of the
Cable Act.