[HISTORY: Adopted by the Borough Council of Montgomery Borough 3-20-1978 by Ord. No. 1978-2 (Ch. VI, Part 4, of the 1996 Code of Ordinances). Amendments noted where applicable.]
WHEREAS, the Borough Council of the Borough of Montgomery, has found and determined that the public necessity and convenience of the Borough of Montgomery would be served by a cable communications system; and,
WHEREAS, the Montgomery Video Corporation has and is presently operating a Cable Television service in the Borough of Montgomery; and,
WHEREAS, the Borough Council of the Borough of Montgomery, has been advised by the Montgomery Video Corporation that, pursuant to Section 76.11(b) and (c) of the Federal Communications Commission's Rules and Regulations, an application for a Certificate of Compliance must be filed by the Montgomery Video Corporation on or before the expiration date of its current franchise in order to allow the said Montgomery Video Corporation to continue to supply cable television service to the Borough of Montgomery pending Federal Communications Commission action thereon; and,
WHEREAS, the Montgomery Video Corporation is desirous of filing such an application for a Certificate of Compliance at the earliest possible date to insure continued cable television operations in the Borough of Montgomery; and,
WHEREAS, in order to obtain a Certificate of Compliance from the Federal Communications Commission, the Montgomery Video Corporation is required to furnish the Federal Communications Commission with a copy of its Franchise; and,
WHEREAS, the Council of the Borough of Montgomery has considered and reviewed and is satisfied with the qualifications of the Montgomery Video Corporation and its operation of the cable television system.
Editor's Note: Section 15 of this ordinance provided that the ordinance be effective immediately upon its enactment by Borough Council, and approval by the Mayor.
[Amended 11-16-1982 by Ord. No. 1982-12; 11-6-1984 by Ord. No. 1984-7]
As used in this ordinance, the following terms shall have the meanings indicated:
- The Borough of Montgomery in its present incorporated form or as it may be changed by annexation.
- CABLE COMMUNICATIONS SYSTEMS OR SYSTEM
- Any system which receives and amplifies signals broadcast by one or more television and/or radio stations and which transmits programming originated by the system itself or by another party, and distributes such signals and programming by wire, cable, microwave, satellite, or other means to persons who subscribe to such services.
- Programming carried on a cable system, exclusive of broadcasting signals, whether originated by the cable operator or any other party.
- The Borough Council of the Borough of Montgomery, Lycoming County, Pennsylvania, the local legislative body.
- Tele-Communications, Inc., 16 West Houston Avenue, Montgomery, Pa., and its lawful successors and assigns.
Editor's Note: As enacted by Ordinance 1978-2, this subsection named the grantee Montgomery Video Corporation; Ordinance 1982-12 changed it to Tele-Media Corporation of Lycoming Valley, and Ordinance 1984-7 to Tele-Communications, Inc.
Editor's Note: The preamble to Ordinance 1982-12 stated that the Borough had previously amended Ordinance 1978-2 by Ordinance 1982-9 and by resolution of July 6, 1982, had assigned the franchise to Tele-Media Corporation of Lycoming Valley and had renewed and extended the franchise to 15 years; that a public hearing had been held on August 3, 1982, concerning rate increases and other matters; and that the Borough desired to incorporate the terms of the resolutions into the television cable ordinances and to amend them in respect to other matters. Section 1 of Ordinance 1982-12 stated that Ordinance 1978-2 and Ordinance 1982-9 were reenacted, and that the provisions of those ordinances were to remain in full force and effect as modified and/or enlarged in Ordinance 1982-12. Section 6 of Ordinance 1982-12, as reenacted by Ordinance 1984-7 provided that the ordinance was to take effect immediately upon its enactment by Council and approval by the Mayor.
There is hereby granted by the franchising authority to the Grantee, the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the Borough poles, wires, cables, underground conduits, manholes, and other cable conductors and fixtures necessary for the maintenance and operation in the Borough of Montgomery, of a Cable Communications System, to be used for the sale and distribution of cable services to the residents of the Borough. Said broadband cable services shall include, but shall not be limited to, the carriage of television and radio signals and any cablecasting programming.
The Grantee shall, at all times during the operation of this franchise, be subject to all lawful exercise of the police power as may be hereafter provided by the franchising authority, as well as all applicable laws and ordinances.
This ordinance is for the present territorial limits of the Borough of Montgomery and for any area henceforth added thereto during the term of this franchise. Cable service shall be made available to the entire franchise area.
[Amended 11-16-1982 by Ord. No. 1982-12; 8-12-1997 by Ord. No. 1997-4]
The duration of the rights, privileges and authorization hereby granted shall be three years effective July 6, 1997, and to expire midnight, July 6, 2000.
This franchise may be renewed or extended by the franchising authority, upon application of the grantee, in accordance with the then existing rules of the FCC and applicable law. Renewal or extension of the franchise shall be considered in a full public proceeding affording due process, during which the performance of the grantee, and the adequacy of the franchise ordinance will be reviewed. Nothing in this provision shall be construed to require such renewal or extension.
Editor's Note: As enacted by Ordinance 1978-2. Subsection A of this section provided that the term of the franchise was to be five years from the date the franchise was awarded: the term was extended by Ordinance 1982-12 for 15 years to July 6, 1997, then by Ordinance 1997-4, it was extended three years, effective July 6, 1997 and to expire at midnight, July 6,2000.
[Amended 11-16-1982 by Ord. No. 1982-12]
No transfer of control of the Cable Communications System shall take place, whether by forced or voluntary sale, lease, mortgage, assignment, encumbrance or any other form of disposition without prior notice to and approval by the Borough Council. Such approval shall not be withheld unreasonably. Notwithstanding the foregoing, the Borough Council hereby authorizes Franchisee to cease to do business as a limited partnership and to incorporate or to assign, alienate or transfer its rights hereunder or to permit its ownership interests or stock, as the case may be, to be assigned, alienated or transferred to Tele-Media Corporation or any of Tele-Media Corporation's subsidiaries or affiliates or to any other entity, provided that Tele-Media Corporation maintains control over the entity and over the day-to-day operations of the Cable Communications System. For the purposes of this section, the term "control" is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. In addition, the Borough hereby agrees that no such approval shall be required for a transfer in trust, mortgage or other hypothecation as a whole of the rights of franchisee under Ordinances No. 1978-2 and 1982-9 to secure indebtedness incurred in connection with any financing of the operations of the Cable Communications System. The Borough shall receive prompt written notice of the occurrence of the above by the franchisee.
[Amended 9-2-1982 by Ord. No. 1982-9; 11-16-1982 by Ord. No. 1982-12]
Rates. The minimum rates which may be charged by the grantee to subscribers shall be as follows:
Basic services: residential, commercial, and multifamily units, $50, installation, plus $7 per month.
Additional outlets: $10 installation plus a dollar and a $1.25 per month. This monthly rate shall not take effect until October 6, 1983, or the date on which the franchisee shall comply with Subparagraph 4.
The aforestated monthly service rate of $7 shall be effective on October 6, 1982, or thereafter as the franchisee deems advisable.
The aforesaid basic monthly service rate of $7 may be increased at the discretion of the franchisee to $8 per month upon the following conditions:
Said rate increase of $8 per month shall not take effect before October 6,1983.
Franchisee shall provide a general improvement and upgrading of the television cable system with respect to quality of reception. And, in addition, franchisee agrees to provide or make available a minimum of eight additional channels and to provide a variety of pay channels, including Home Box Office or similar channel, prior to October 6, 1983.
In all other respects, the provisions of Section 6 of Ordinance 1978-2 shall remain in full force and effect.
Franchise fee. For the use of the streets, rights-of-way and other facilities of the Borough of Montgomery for the operation of the cable television system, and for the supervision thereof by the Borough of Montgomery, the franchisee shall pay to the Borough of Montgomery an amount equal to 3% of the franchisee's gross revenues from the operations of the franchisee in the Borough of Montgomery.
Editor's Note: Ordinance 1982-9 amended this entire section, making extensive changes in what was to become Section A and Section B, to provide for a franchise fee; Ordinance 1982-12 amended Subsection A(2) only. The preamble to Ordinance 1982-9 referred to the enactment of Ordinance 1978-2, and stated that on July 6, 1982, by resolution of Borough Council, the franchise was assigned to Tele-Media Corporation of Lycoming Valley; and, by another resolution, had renewed and extended the franchise to 15 years, and that a public hearing was duly advertised and held August 3, 1982, following which Council desired to incorporate the resolutions and otherwise amend the ordinance. Section 1 of Ordinance 1982-9 reenacted Ordinance 1978-2 except as modified, amended and enlarged by Ordinance 1982-9, Section 3 of Ordinance 1982-9 provided that the ordinance be effective immediately upon enactment by Council and approval by the Mayor.
The communications system permitted to be installed and operated hereunder shall:
All transmissions and distribution structures, lines and equipment erected by the grantee within the Borough shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who join any of the said streets.
In case of disturbance of any street or paved area, the grantee shall, at its own cost and expense and in a manner approved by the Borough, replace and restore such street or paved area in as good a condition as before the work involving such disturbance was done.
If, at any time during the period of the franchise, the Borough shall lawfully elect to alter or change the grade of any street, the grantee, upon reasonable notice by the Borough, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense.
Any poles or other fixtures placed in or adjacent to any street by the grantee shall be placed in such manner as to comply with all requirements of the Borough.
The grantee shall, at the request of any person holding a moving permit issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or 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 48 hours' advance notice to arrange for such temporary wire changes.
The grantee shall have the authority to trim trees upon and overhanging streets of the Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that, at the option of the Borough, such trimming may be done by it or under its supervision and direction at the expense of the grantee.
In all sections of the Borough where the cables, wires, or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires or other like facilities underground.
At the expiration of the term for which the franchise is granted, or upon its termination and cancellation, as provided for herein, the Borough shall have the right to require the grantee to remove, at its own expense, all portions of the cable television system from all streets within the Borough.
It shall be expressly understood and agreed by and between the Borough and any grantee hereunder that the grantee shall save the Borough and its agents and employees harmless from and against all claims, damages, losses, and expenses, including attorneys' fees sustained by the Borough on account of any suit, judgment, execution, claim or demand whatsoever arising out of, but not limited to, copyright infringements and all other damages arising out of the installation, operation or maintenance of the cable system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this ordinance and any franchise granted hereunder.
The grantee shall put, keep, and maintain all parts of the system in good condition throughout the entire franchise period.
Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request.
Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum system use.
Grantee shall not allow its cable or other operations to interfere with television reception of persons not served by grantee, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the Borough.
The franchising authority shall have the right to rescind or revoke the rights herein granted upon any violation by the grantee of any material obligation or requirement contained herein, or upon the refusal to comply with any reasonable request made by the Borough Council concerning compliance with this ordinance, after written notice by the franchising authority to the grantee, and continuation of such violation or refusal to comply by the grantee.
Such written notice to the grantee shall specify precisely the manner in which the grantee is in violation, with respect to the franchise. The notice shall specify a reasonable amount of time within which the grantee must correct the violation, but in no event shall the time period be less than 30 days from the date of receipt of the notice to the grantee.
In the event the grantee shall be adjudicated bankrupt or placed in receivership, the Borough may, by resolution, declare this franchise herein granted to be forfeited and terminated.
Grantee shall not, as to rates, charges, service, service facilities, rules, regulations, employment, or in any other respect, make or grant any undue preference or advantage to any party, nor subject any party to any prejudice or disadvantage.
In the acceptance of the franchise, grantee specifically grants and agrees that its application is thereby incorporated by reference and made a part of this ordinance. In the event of a conflict between proposed services listed in said application and the provisions of this ordinance, that provision which provides the greatest benefit to the Borough, in the opinion of the Borough Council, shall prevail. Failure to provide services as promised in grantee's application as incorporated herein shall be deemed a breach of this ordinance to which the provisions of § A504-12 of this ordinance shall apply.
If any section, clause or phrase of this ordinance is held unconstitutional, or otherwise invalid, such infirmity shall not affect the validity of the ordinance, and any portions in conflict are hereby repealed. Provided, however, that in the event that the Federal Communications Commission declares any section invalid, then such section or sections shall be renegotiated by the Borough and the grantee.