Borough of Hamburg, PA CABLE TELEVISION FRANCHISE

A facility that crosses public rights-of-way, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable services as well as noncable services to customers but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves only subscribers in one or more multiple unit dwellings, not including single-family dwellings under common ownership, control or management unless such facility or facilities uses any public right-of-way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Communications Act of 1934, except that such facility shall be considered as a cable system to the extent such facility is used in transmission of video programming directly to subscribers; or (4) any facilities of any electric utility used solely for operating its electric utility system.

GRANTEE

Any person or entity which is granted a nonexclusive franchise pursuant to the terms of this Part.

MUNICIPALITY

The Borough of Hamburg.

PERSON

Any person, firm, partnership, association, corporation, company or organization of any kind.

§ 13-103 Require a Franchise to Operate.

[Ord. 624, 12/29/1993, § 3]

A nonexclusive franchise to construct, operate and maintain a system within all or any portion of the Borough is required of anyone desiring to provide cable service in the Borough. A franchise may be granted by the Borough Council by resolution or written approval of franchise application 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 subject to the following conditions, in addition to those set forth elsewhere in this Part:

Nonexclusive Grant. No right to use and occupy said streets, alleys, public ways and places granted pursuant to this Part shall be deemed to be exclusive and the Borough reserves the right to grant rights to any other qualified company at any time. The foregoing notwithstanding, in the event any material provision(s) of any franchise granted by the Borough to any subsequent grantee is (are) more favorable (by inclusion, exclusion or altering of such material provision(s)) to such subsequent grantee than the corresponding provision(s) of a previous grantee's franchise, such previous franchise shall be deemed to be amended to include all such more favorable provision(s).

If Borough Council permits anyone to operate a system within the Borough without a franchise, the qualifying company shall not be obligated to comply with the terms and conditions of this Part until such time as Borough Council requires such other person to apply for and Borough Council actually grants a franchise to it in accordance with the terms and conditions of this Part.

§ 13-104 Compliance With Applicable Laws and Ordinances.

[Ord. 624, 12/29/1993, § 4]

Grantees shall, at all times during the life of a franchise granted pursuant hereto, be subject to all lawful exercise of the police power by the Borough and to such reasonable regulation pursuant to the exercise of such police power as the Borough, Commonwealth of Pennsylvania or United States of America shall hereafter by resolution, ordinance, statute or regulation provide including:

Interference. If there is any interference on any television set, radio or other electronic device not connected with the conductors or fixtures of the grantee which is caused by 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 the Borough may direct the suspension of the operation of the grantee within the affected area of the Borough until such interference is eliminated.

Building Permits. In addition, the grantee shall apply for and take out any and all building permits required by the Borough for any construction to be undertaken by said grantee. Such permits will not be unreasonably withheld or delayed by the Borough. Cost of such permits shall be considered to have been paid as part of the grantee's franchise fee payments.

§ 13-105 Indemnification; Insurance.

[Ord. 624, 12/29/1993, § 5]

The grantee shall save the Borough harmless from any suit, judgment, claim or demand whatsoever arising out of the operations of the grantee in the construction, operation or maintenance of its system in the Borough excluding any activities that are the result of gross negligence or deliberate acts or omissions of the Borough, its officers, employees, agents, boards or commissions. The Borough shall notify the grantee's representative in the Borough within 10 days after the presentation of any claim or demand, either by suit or otherwise, made against the Borough on account of any damages or losses as aforesaid resulting from the operations of the grantee. In order for the Borough to assert its rights to be indemnified and held harmless the Borough must notify the grantee of any claim or legal proceeding which gives rise to such right, afford grantee the opportunity to participate in and control fully any such compromise, settlement, resolution or disposition of such claim or proceeding and cooperate fully in the defense of such claim and make available to the grantee all such information under its control relating thereto. The grantee shall furnish to the Borough, prior to the grant of a franchise hereunder, insurance of not less than $500,000 for any one person and $1,000,000 for any one accident and property damage insurance of not less than $500,000 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 Borough. Upon request, written evidence of the maintenance of such insurance in full force and effect shall be furnished annually thereafter to the Borough.

§ 13-106 Grantee Rules.

[Ord. 624, 12/29/1993, § 6]

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 Part 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 Borough or the laws of the Commonwealth of Pennsylvania or the United States of America.

§ 13-107 Conditions on Street Occupancy.

[Ord. 624, 12/29/1993, § 7]

Use. All transmission and distribution structures, lines and equipment erected by the grantee within the Borough shall be so located as to cause minimum interference with the use by 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 abuts the said streets, alleys or other public ways and places.

Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, grantee shall at its own cost and expense and in a manner approved by the Borough Engineer or other person designated by the Council replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed in as good condition as before said work was commenced.

Relocation. In the event that at any time during the period of any franchise granted pursuant to this Part the Borough shall lawfully elect to alter or change the grade or location of any street, alley or other public way, grantee, upon reasonable notice by the Borough, shall remove, relay and relocate it poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

Placement of Fixtures. 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 and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalks 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.

Temporary Removal of Wire for Building Moving. Grantee shall, on the request of any person holding a building permit issued by the Borough, 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 72 hours advance notice to arrange for such temporary wire changes.

Tree Trimming. The grantee shall have the authority to the same extent that the Borough has such authority to trim trees and upon overhanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee.

§ 13-108 Borough Rights.

[Ord. 624, 12/29/1993, § 8]

Borough Rules. The Borough may adopt by resolution such additional regulations as it shall find necessary in the exercise of he police power; provided, that such regulations shall be reasonable and not in conflict with the laws of the Commonwealth of Pennsylvania and the United States.

Use of System by the Borough. The Borough 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 Borough wires and fixtures necessary for police communications, fire alarm and civil defense warning systems. The Borough will be responsible for installation and maintenance of any such systems. If any such systems interfere with operation or maintenance of the system, then the grantee shall repair, more or remove equipment and shall be reimbursed by the Borough for all reasonable costs of labor and material. The Borough shall indemnify and hold the grantee harmless from any and all claims, demands or judgments whatsoever arising out of the use of the system by the Borough unless the claim arises out of an alleged negligent act of the grantee.

Inspection. The Borough, at its own cost, 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 Part and all other governing ordinances.

The Borough maintains the right to regulate the franchisee in accordance with any and all rights and regulations granted through Federal law to the Borough.

§ 13-109 Service to Institutions.

[Ord. 624, 12/29/1993, § 9]

The grantee will, upon request, provide free installation and standard service to one outlet in each municipal building, public and private school building and police, fire and ambulance station within the Borough provided such structures are within 200 feet of existing service area.

§ 13-110 Service Requirements.

[Ord. 624, 12/29/1993, § 10]

The grantee will provide for prompt service calls which, during regular business hours, shall be responded to within a maximum of 24 hours from the time of complaint.

Weather permitting and absent exigent circumstances, installation of individual service will take place within 10 days of the application in the cases of aerial installations and within 60 days in cases of underground installations, where feasible.

The grantee agrees to credit all customers within the Borough for any loss of service (other than those losses causes or required by the customer) in excess of 24 hours.

The grantee shall maintain an office in the Borough. The grantee's office shall be open during reasonable and usual business hours, shall have a listed telephone or telephones and be so operated that complaints and requests for repairs or adjustments may be received at any time.

§ 13-111 Payment to Borough.

[Ord. 624, 12/29/1993, § 11]

Any grantee holding a franchise pursuant to the terms of this Part shall pay to the Borough for the privilege of operating its community television system under such franchise the sum of 5% of the annual gross cable television revenue from basic and standard service monthly fees. As used in this Part, annual gross cable television revenues shall not include Pennsylvania sales tax, if any, imposed on cable service and any fees payable to the Borough by the cable operator for the privilege of operating its community television system within the Borough. Termination of operation or failure to undertake operation by the grantee within one year of the granting of a franchise hereunder shall terminate liability under this taxing provision.

The grantee shall make payment to the Borough of such fees on an annual basis within 30 days following the anniversary date of the grant of its franchise.

§ 13-112 Records and Reports.

[Ord. 624, 12/29/1993, § 12]

At all times during the term of this franchise the grantee shall maintain accurate and complete books of account and records for the purpose of providing a correct financial revenue statement for franchise fee computation. Upon request by Borough Council these records shall be made available to Borough Council at the grantee's regular place of business. The grantee shall be given no less than 10 days written notice of any such request.

§ 13-113 Terms of Franchise.

[Ord. 624, 12/29/1993, § 13]

Any franchise granted hereunder shall be for the initial term of 15 years.

§ 13-114 Franchise Applications.

[Ord. 624, 12/29/1993, § 14]

All applicants for a franchise shall submit to the Borough a statement containing the following:

Name of the applicant.

Address of the applicant.

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.

Description of the area to be covered by the franchise.

Upon receipt of the above information, together with such other information which is reasonably related to the ability of the grantee to meet the cable related needs of the community, the Council shall determine whether or not it is in the best interests of the Borough to grant a franchise to the applicant.

§ 13-115 Termination of Franchise.

[Ord. 624, 12/29/1993, § 15]

Upon revocation of the franchise by the Borough, or at the end of the term of a franchise, the grantee shall remove all of its equipment and other facilities from the Borough 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.

In addition to all other rights and remedies retained by the Borough under this Part, the Borough shall have the right to revoke a franchise if the grantee knowingly fails to substantially comply with any material provisions of this Part or the franchise agreement. The Borough shall not have the right to revoke a franchise if the grantee cures the material breach in accordance with subsection (A), 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 Borough Council in accordance with the following procedures:

The Borough Council shall notify the grantee in writing of the alleged failure of compliance setting forth the reasons for alleging that the failure is knowing and substantial. The grantee shall have 60 days subsequent to the receipt of the notice to correct the failure and respond to the Borough Council.

Within 30 days of the receipt of the grantee's response, or if the grantee fails to respond, the Borough Council, if it concludes that a basis for revocation still exists, shall notify the grantee in writing of this conclusion.

Within 30 days of the determination that a basis for revocation exists, the Borough Council shall hold a public hearing upon reasonable notice to the grantee to consider whether revocation of the franchise is consistent with the public welfare. At the public hearing the grantee shall be given an opportunity to address the grounds for revocation and to present evidence to examine witnesses and to be represented by counsel. The Borough will provide a stenographic record of the hearing. The Borough shall, within 21 days of the hearing, either determine not to revoke the franchise or revoke the franchise absolutely or conditionally. Borough Council shall prepare a written decision setting forth the reasons for any revocation of the franchise. No revocation will be deemed effective, however, until either the grantee accepts in writing the ruling of the Borough Council or has exhausted all its administrative and judicial appeals and the Borough Council's ruling has been upheld by a court of last resort.

§ 13-116 Franchise Renewal.

[Ord. 624, 12/29/1993, § 16]

A franchise may be renewed by he Borough pursuant to the procedures established in this Section and applicable Federal and State law and regulations.

During the six-month period which begins with the thirty-sixth month before the expiration of the franchise the Borough 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:

(1)

Identifying future cable-related community needs and interests.

(2)

Reviewing the performance of the grantee under the franchise during the then current franchise term.

Upon completion of such proceedings the grantee may submit a proposal for renewal. Upon the request of the Borough a grantee shall submit a proposal for renewal. Subject to restrictions contained in the Cable Act, any such proposal shall contain such material as the Borough may require, including proposals for an upgrade of the system. The Borough may establish a date by which any such proposal shall be submitted.

Upon submittal of a proposal for the renewal of a franchise the Borough shall provide prompt public notice of such proposal and during the four-month period which beings on the completion of any proceedings under subsection (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:

(1)

The grantee has substantially complied with the material terms of this Part.

(2)

The quality of the grantee's cable service, except for the mix, quality and level of programming or other services provided over the system, has been reasonable in light of community needs.

(3)

The grantee has the financial, legal and technical ability to provide the cable services, facilities and equipment as set forth in the proposal.

(4)

The proposal is reasonable to meet future cable-related community needs and interests taking into account the cost of meeting such needs and interests.

In any administrative proceeding the grantee and the public shall be afforded notice and the grantee and the Borough 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. At the completion of an administrative proceeding the Borough 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 thereof.

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 (C), based upon the record of the proceeding. The Borough may not base a refusal to renew or a denial of renewal upon factors in subsection (C) unless the Borough 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.

If a grantee's proposal for renewal has been denied by a final decision of the Borough made pursuant to this Section or if the grantee has been adversely affected by a failure of the Borough to act in accordance with the procedural requirements of this Section, the grantee may seek review of such final decision or failure within 120 days of the issuance of the decision either in the district court of the United States for any judicial district in which the system is located or in any State court of general jurisdiction having jurisdiction of the parties. The court may grant appropriate relief if it finds that any action of the Borough is not in compliance with the procedural requirements of this Section or that the denial of the renewed proposal by the Borough is not supported by a preponderance of the evidence based on the record of the proceeding conducted under this Section.

Any decision of the Borough on a proposal for renewal shall not be considered final unless all administrative review has occurred or the opportunity therefor has lapsed.

Notwithstanding the provisions of this Section, a grantee may submit a proposal for the renewal of a franchise at any time and the Borough 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 subsections (A) through (F) of this Section.

If the current franchise expires by its own terms before the Borough and the grantee have reached agreement on the terms and conditions of a renewal franchise or before the completion of the formal renewal procedures set forth in this Section, the Borough shall extend the expiration date of the current franchise until either a new franchise has been granted or the Borough's denial has been upheld by the court of last resort.