[HISTORY: Adopted by the Board of Supervisors of the Township of Bern 6-2-1980 by Ord. No. 55. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Cable Television Franchise Ordinance."
[Amended 12-13-1999 by Ord. No. 183-1999]
For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. Any terms that are not otherwise defined in this chapter are intended to have the meaning ascribed to them by the federal statute known as the "Communications Act of 1996," as the same may be further amended hereafter.
BOARD OF SUPERVISORS
The Board of Supervisors of the Township of Bern.
PERSON
Any person, firm, partnership, association, corporation, company or organization of any kind.
QUALIFYING COMPANY
Any person or entity which is granted a nonexclusive franchise pursuant to the terms of this chapter.
TOWNSHIP
The Township of Bern.
The Board of Supervisors is hereby authorized to grant the right and privilege to qualifying companies 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 township, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the borough of a community television system and for closed circuit cable services.
A. 
Nonexclusive grant. No right to use and occupy said street, alleys, public ways and places granted pursuant to this chapter shall be deemed to be exclusive, and the township reserves the right to grant similar rights to any other qualifying company at any time.
B. 
State Highway Department permits. Grants by the township pursuant to this chapter are subject to the provisions of the Township Code of the Commonwealth of Pennsylvania and more particularly to the provisions of the ordinances of the township which require that before any conduits, pipes or other structures be erected upon or in any portion of a township street, a permit must be obtained from the township. Where a state highway is involved, such construction shall be made under the conditions, restrictions and regulations as may be prescribed in the permit to be obtained from the State Highway Department.
C. 
Grant of prescribed rights. Grants pursuant to this chapter further shall be subject to the qualifying companies obtaining any and all necessary easements, rights-of-way and other grants from any and all property owners who may be affected by the construction, operation and maintenance of the aforesaid conductors and fixtures.
D. 
Qualifying companies are prohibited from directly or indirectly engaging in the sale, service, rental, leasing or repair of television receivers, parts or related accessories.
Qualifying companies shall, at all times during the life of a franchise grantee pursuant hereto, be subject to all lawful exercise of the police power by the township and to such reasonable regulations, pursuant to the exercise of such police power, as the township, the County of Berks, the Commonwealth of Pennsylvania or the United States of America or any regulatory commissions of the same, shall hereafter by resolution, ordinances, statute or regulation provide.
A. 
Interference. If there is any interference, intentional, unintentional or otherwise, on any television set, radio or other electronic device not on the conductors or fixtures of the qualifying company caused by the conductors or fixtures of the qualifying company, the qualifying company shall immediately, at its own cost and expense, eliminate such interference. If such interference cannot be eliminated within 48 hours, the township shall have the power to suspend, by direction of the Board of Supervisors or its designee and without hearing, the operation of the qualifying company within the township until such interference is eliminated.
B. 
Building permits. In addition, the qualifying company shall apply for and take out any and all building permits required by the township for any construction to be undertaken by said qualifying company.
It is expressly understood and agreed by and between any qualifying company and the township that the qualifying company shall save the township harmless from all loss sustained by the township on account of any suit, judgment, execution, claim or demand whatsoever, resulting from the operations of the qualifying company in the construction, operation or maintenance of its television system in the township. The township shall notify the qualifying company's representative in the township within 10 days after the presentation of any claim or demand, either by suit or otherwise, made against the township on account of any damages or losses as aforesaid resulting from the operations of the qualifying company. The qualifying company shall furnish to the township, prior to the grant of a franchise hereunder, evidence in writing that the qualifying company has in force and will maintain in force during the term of any franchise granted pursuant to this chapter, public liability 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 insurance companies authorized to do business in this commonwealth.
The qualifying company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the qualifying company to exercise its rights and perform its obligations under this franchise and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof, additional regulations or ordinances of the Township of Bern, the laws of the State of Pennsylvania or the laws of the United States of America.
A. 
Use. All transmission and distribution structures, lines and equipment erected by the qualifying company within the township shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights of reasonable convenience of property owners who adjoin any of said streets, alleys or other public ways and places.
B. 
Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the qualifying company shall, at its own cost and expense, and in a manner approved by the Township Engineer, 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. Said restoration shall also be subject to the ordinances of the Township of Bern and the rules and regulations of the State Highway Department, as appropriate.
C. 
Relocation. In the event that at any time during the period of any franchise granted pursuant to this chapter, the township shall lawfully elect to alter or change the grade of any street, alley or other public way, the qualifying company upon reasonable notice by the township, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other television fixtures at its own expense.
D. 
Placement of fixtures. The qualifying company, 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 qualifying company shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant or main and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curbline, and those placed in alleys shall be placed close to the line of the lot abutting on said alley and then in such a manner as not to interfere with the usual travel on said streets, alleys and public ways.
E. 
Temporary removal of wire for building moving. The qualifying company shall, at the request of any person holding a building moving permit issued by the township, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same and the qualifying company shall have the authority to require such payment in advance. The qualifying company shall be given not less than 48 hours advance notice to arrange for such temporary wire changes.
F. 
Tree trimming. The qualifying company shall have the authority to the same extent that the township has such authority, to trim trees upon and overhanging streets, alleys, sidewalks and public places of the township so as to prevent the branches of such trees from coming in contact with the wires and cables of the qualifying company.
All franchises and privileges granted pursuant to the terms of this chapter shall be unassignable unless such assignment has been approved by township, by resolution, at a duly convened meeting of the Township Board of Supervisors.
A. 
Township rules. The right is hereby reserved to the township to adopt by resolution, in addition to the provisions herein contained and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of police power, provided that such regulations shall be reasonable and not in conflict with the rights herein granted, and shall not be in conflict with the laws of the State of Pennsylvania.
B. 
Use of system by township. The township shall have the right, during the life of this franchise, free of charge, where aerial construction exists, of maintaining upon the poles of the qualifying company within the township limits wire and pole fixtures necessary for a police and fire alarm system. Such wires and fixtures to be constructed and maintained to the satisfaction of the qualifying company and in accordance with its specification.
C. 
Inspection. The township shall have the right to inspect all construction or installation work during such construction or installation or at any time after completion thereof, in order to ensure compliance with the provisions of this chapter and all other governing ordinances.
D. 
Existing antennas. The qualifying company may not require as a condition precedent to the connection of a user to the community television system, the removal by said user of existing interior or exterior television antennas and related facilities owned by said user.
E. 
Service. Qualifying companies shall install a system which will provide a signal strength of not less than six decibels (or 500 microvolts) at the point of connection of each television receiver connected to said system. Said companies shall provide service to all residents of the township who request the same.
[Amended 12-13-1999 by Ord. No. 183-1999]
A. 
Any qualifying company granted a franchise permit pursuant to the terms of this chapter shall pay to the township for the privilege of operating its community television system under the franchise the sum of 5% of the monthly gross revenues[1] derived from operation of the cable system collected each month payable annually for as long as the qualifying company operates the system under such franchise. "Gross revenues" include, but are not limited to, all revenues derived from the cable system operated by such company within the township, including:
(1) 
Subscriber fees for basic cable service, cable programming service, premium, pay-per-view or any other video programming service;
(2) 
Subscriber fees for any other programming service (including cable radio service);
(3) 
The rental or sale of converters, remote control devices or other equipment related to cable service (including cable radio service);
(4) 
Program guides, including advertising revenues;
(5) 
Advertising;
(6) 
Home shopping channels; and
(7) 
Any other revenue derived, either directly of indirectly, from the operation of the cable system to provide cable service.
[1]
Editor's Note: See also § 66-18.
B. 
Each annual payment shall be accompanied by a written report to the township in a form satisfactory to the township containing an accurate statement in summary form, as well as in such detail as the township may require, demonstrating the qualifying company's calculation of gross revenues and computation of the franchise fee payment amount. Such reports shall be verified by an officer of the qualifying company as to accuracy and completeness.
[Amended 12-13-1999 by Ord. No. 183-1999]
The qualifying company shall maintain records of gross revenues derived from the cable system and shall make such records available to the township during its duly designated agents or officers during regular business hours at the office of the qualifying company upon written request from the township.
Franchises issued pursuant to the terms of this chapter shall be issued for the term of 10 years; provided, however, that such franchise may be renewed for successive ten-year terms upon approval by the Board of Supervisors after application by the qualifying company, and provided that the qualifying company complies in all respects with the terms hereof and maintains a financial condition satisfactory to the township.
[1]
Editor's Note: The current cable franchise agreement is on file in the Township's offices.
All applicants for franchise permits shall submit to the township a statement containing the following, together with an application fee of $50:
A. 
The name and address of applicant.
B. 
Evidence of financial condition of the applicant and, if the applicant is a corporation or partnership, the names of the principal stockholders or partners, whichever is applicable. A financial statement of the person shall be submitted and shall be certified by a certified public accountant.
C. 
Description of the area to be covered by the franchise.
D. 
Schedule of proposed rates to be charged by the applicant for all services to be rendered with the township.
E. 
Such application shall be made upon forms to be supplied by the township. The township reserves the right to request such other information as it may deem necessary. Upon receipt of the above information, together with such other information as is requested by the township, the Board of Supervisors shall determine whether or not it is in the best interest of the township to grant a franchise permit to the applicant. If the franchise permit is granted to the applicant, the applicant shall commence construction of the facilities and shall exercise its rights under the franchise within six months of the grant of the franchise.
Rates and installation fees charged by the qualifying company for service hereunder shall be fair and reasonable and designed to meet all necessary costs of the service, including a fair rate of return on net valuation of its properties devoted thereto under efficient and economical management. Qualifying companies agree that they shall be subject to all authority now or hereafter possessed by the township or any other regulatory body having competent jurisdiction to fix just, reasonable and compensatory rates and installation fees. The qualifying company shall initially charge the rates and installation fees shown on the schedule filed with the application for a franchise, which rates and installation fees shall be reviewed and approved by the Board of Supervisors prior to the issuance of the franchise. There shall be no increases in subscriber rates and installation fees except upon the approval of the Board of Supervisors pursuant to public proceedings affording due process. In the event of the failure of the Board of Supervisors to approve the application for increase it shall be referred to a Board of Arbitrators composed of three members, one of whom shall be selected by the township, one of whom shall be selected by the qualifying company and the third member shall be selected by the aforementioned designees. The Board of Arbitrators, pursuant to public proceedings affording due process, shall render a decision either approving or disapproving the proposed change of rates and installation fees within 30 days after the date of the appointment of the last member of said board and such decision shall be binding upon the township and the qualifying company. Appointments to said Board of Arbitrators by the township and by the qualifying company shall be made within 15 days after action of the township disapproving the proposed rate and installation fee change.
Upon revocation of the franchise of a qualifying company by the township or at the end of the term of a franchise of a qualifying company, the qualifying company shall remove all of its equipment and other facilities from the township within 90 days of the notice of revocation or the end of the term.
A. 
Throughout the term of its franchise, the qualifying company shall maintain all parts of the system in good, working condition. However, realizing that service interruptions may occur, the township and the qualifying company deem it necessary to establish a cooperative, coordinated procedure for the resolution of subscriber complaints. The township shall appoint a Complaint Officer who shall be responsible for assuring that all complaints are satisfactorily and promptly resolved through the office of the qualifying company required to be established under this chapter.
B. 
The procedure for reporting service problems and the responsibilities of township and qualifying company in this regard shall be as follows:
(1) 
As to the qualifying company. Upon finding cable service problems, the subscriber shall report the same to the qualifying company by communicating with its local business office required to be established under this chapter and action shall be taken as provided in this chapter. In this connection, the qualifying company shall keep a record in its offices of every complaint received, together with a memorandum indicating the manner of disposition thereof. Said records shall be kept for two calendar years after the date of disposition of the matter reflected therein. Said records shall be available for review or inspection by the township, the Complaint Officer or any other designee of the Board of Supervisors during regular business hours. At least one time each calendar year, qualifying company shall send to all of its current subscribers a complaint form, setting forth the procedure for reporting a complaint and indicating that any complaint not promptly and properly resolved may be registered with the Township Complaint Officer. Said complaint form shall be given to each subscriber at the time of initial connection to the system of qualifying company.
(2) 
As to the township. The Township Complaint Officer shall conduct investigations of unresolved complaints in a manner he deems necessary in order to effectuate resolution thereof. He shall maintain records of all complaints and the disposition thereof in the office of the township and the same shall not be destroyed or disposed of for a period of two years following resolution of the matter about which a complaint was received. Whenever the Complaint Officer believes that the company is not providing proper service, the Complaint Officer shall bring this matter to the attention of the Board of Supervisors and an appropriate conference with qualifying company shall be convened in order to effectuate resolution.
[Adopted 3-5-2002 by Ord. No. 195-2002]
Any person who violates or permits a violation of this chapter, upon being found liable therefor in a civil enforcement proceeding, shall pay a fine of not more than $600, plus all court costs, including reasonable attorney's fees, incurred by the township in the enforcement of this chapter. No judgment shall be imposed until the date of the determination of the violation by the District Justice and/or Court. If the defendant neither pays nor timely appeals the judgment, the township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day a violation exists shall constitute a separate offense. Further, the appropriate officers or agents of the township are hereby authorized to seek equitable relief, including injunction, to enforce compliance herewith.
[Added 12-13-1999 by Ord. No. 183-1999]
In the event that at any time that this chapter is in effect, the township is authorized by applicable law to collect an amount in excess of 5% of gross revenues, then the franchise fee specified in § 66-10, as amended, shall increase to the maximum percentage of gross revenues that is permitted by law if the qualifying company receives a request in writing from the township to increase the franchise fee.