Borough of Media, PA Cable Television Franchise

The Council (hereinafter "Council") of the Borough of Media (hereinafter "borough") is hereby empowered to grant, by resolution of agreement, in consideration of the faithful performance and observance of the conditions and reservations hereinafter specified, the nonexclusive, revocable right (hereinafter "franchise") to a franchisee (hereinafter "company") to construct, own, operate and maintain a community cable television system (hereinafter "cable system") and to erect, maintain and operate television transmission and distribution facilities, and additions thereto, in, under, over, along, across and upon the rights-of-way, including but not limited to streets, lanes, sidewalks, alleys and bridges, and other public places within the Borough of Media, Delaware County, Pennsylvania for the purposes of providing to the residents of the Borough of Media a cable system for the transmission and distribution of audio and visual impulses and television energy in accordance with the laws and regulations of the United States of America, the Commonwealth of Pennsylvania, and the ordinances and regulations of the Borough of Media, now in effect or hereafter enacted.

§ 135-2 Duration of franchise.

The duration of the franchise shall be 15 years from the date of the acceptance of the resolution by the company. The franchise shall automatically renew for an additional five years, under the existing terms and conditions at the time of renewal, unless either the borough or the company gives to the other not less than six months' written notice of its intent to terminate or renegotiate the franchise.

§ 135-3 Termination, cancellation or revocation of franchise.

The borough reserves the right to terminate, cancel or revoke, by resolution, the franchise in the event that the company:

(1)

Fails to construct, operate or maintain the cable system as required by this chapter or any Franchise Agreement entered into between the borough and company;

(2)

Violates any provision of this chapter or any rule, order or determination of the borough made pursuant to this chapter;

(3)

Becomes insolvent, unable or unwilling to pay its debts, it assets are placed into receivership, or is adjudged bankrupt; or

(4)

Violates any federal or Pennsylvania law or regulation.

If the borough invokes any of the provisions set forth above, written notice shall be sent to the company, via certified mail, of its intent to terminate, cancel or revoke the franchise stating the reasons for such action. Such notice may provide the company with a thirty-day period in which to cure the event(s) of default, however, such opportunity is not mandatory.

Company agrees that it does release borough harmless from all claims directly or indirectly arising by reason of termination, cancellation or revocation of the franchise.

In the event of expiration, termination, cancellation, revocation or transfer of the franchise, the company is required to continue to operate the cable system until an orderly change or operation is effectuated, but in the capacity of a trustee for its successors in interest, and subject to an accounting for net earnings or losses during this interim period.

§ 135-4 Right to construct and maintain equipment and facilities.

Upon entering into a franchise with the borough, the company shall have the right and privilege to construct, erect, operate and maintain, in, upon, along, above, across and under the rights-of-way and other public places within the borough such poles, wires, cable, optical fiber, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to its cable system, provided that individual permits are issued for the location of such poles subject to the approval of the affected property owner and the borough and, in addition, so to use, operate and provide similar properties rented or leased from other persons, firms or corporations, for such purposes.

All privileges prescribed by the franchise shall be subordinate to all prior lawful occupancy of the rights-of-way and other public places within the borough, and the borough reserves the right to reasonably designate where a company's facilities are to be placed within the rights-of-way and public places. In the event any equipment or facilities of company shall interfere with said rights-of-way, public places, private property, or borough improvements, existing or intended to be made by the borough, company shall, upon notice from the borough, forthwith relocate said equipment and facilities at company's expense so as to eliminate said interference.

Said franchise shall further include the right of the company to lease, rent, subscribe to service or in any other manner obtain the legal use of towers, poles, lines, cable, conduits, manholes, facilities, service, licenses and franchises within the borough limits, belonging to or held by any other party, including Bell Atlantic and the PECO Energy Company.

The construction, operation, maintenance and repair of the cable system shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended, the National Electrical Safety Code, the National Electric Code, other applicable federal, state or local laws and regulations that may apply to the operation, construction, maintenance or repair of a cable system, including, without limitation, local zoning and construction codes, and laws and accepted industry practices, all as hereafter may be amended or adopted.

In the construction, conduct, maintenance and operation of its business, the company shall comply with all requirements of the borough ordinances, resolutions, local laws, rules, regulations and specifications heretofore or hereafter enacted or established by any public authority having jurisdiction, including the borough, the Commonwealth of Pennsylvania and the United States of America and any departments, bureaus, commissions, boards and subdivisions thereof, including the rules and regulations of the Federal Communications Commission (hereinafter "FCC") and the Department of Labor and Industry of the Commonwealth of Pennsylvania.

All installations of equipment shall be of a permanent nature, using durable components, and shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the borough shall deem appropriate to make or to interfere in any manner with the rights-of-way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.

Company shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.

Any and all rights-of-way or public or private property which are disturbed or damaged during the construction, repair, replacement, relocation, operation or maintenance of the cable system shall be promptly repaired by company at its expense.

In the event of an emergency, or where a cable system creates or is contributing to an imminent danger to health, safety or property, the borough may remove, relay or relocate that cable system without prior notice. When possible, the borough will make reasonable efforts to notify company and give company reasonable opportunity to cure.

The poles used for the distribution of the cable system shall be those maintained by the telephone, electric company or the borough where practicable, providing mutually satisfactory rental agreements can be made with said companies. In all areas of the borough where cables, wires or other facilities of public utilities are placed underground, the company shall place its cables, wires or other like facilities underground.

The company shall grant to the borough, free of expense, joint use of any and all poles owned by it for any proper borough purpose, provided that it may be done without interfering with the free use and enjoyment of the company's own facilities.

The company will file with the borough, and periodically update at least once a year, a full and complete set of plans, records and "as built" maps showing the exact location of all cable system equipment installed or in use in the borough, exclusive of subscriber service drops.

§ 135-5 Limitation of franchise.

This franchise authorizes only the installation and operation of a community antenna television system and does not take the place of any other franchise, license or permit which may be required by law, ordinance or regulation.

This franchise is a privilege to be held in personal trust by the original grantee. It cannot be transferred, leased, assigned or disposed of as a whole, or in part either by forced sale, merger, consolidation, or otherwise, without prior consent of the borough expressed in writing, and then only under such conditions as may be therein prescribed.

§ 135-6 Minimum facilities and service.

The company shall comply with present and future rules and regulations of the Federal Communications Commission in connection with and relating to the operation of its system.

(1)

Emergency Alert System. The company shall install and thereafter maintain an Emergency Alert System for the use by the borough in the event of an emergency or disaster. The Emergency Alert System will consist of the company making its facilities and personnel available to the Borough Council or its designated authority during the emergency or disaster period without charge, including but not limited to the provisions of portable transmission equipment and persons skilled and trained to properly operate same from a local source designated by the borough and, the immediate transmission of emergency or disaster related information, as determined to be relevant by the borough on the public access channel. At present, the level of installed technology does not allow the creation of an emergency alert system which would permit the installation and maintenance of a system which would override all channels in the event of an emergency or disaster. Therefore, until the technology is developed which would allow such a system, the operation of such a system shall be limited to the public access channel only. However, when the level of installed technology grants such capabilities or as soon as practicable, such a system shall be implemented. The borough shall be granted the right to test this system at various intervals in connection with the borough's program of emergency management and readiness. The borough will provide reasonable notice to the company prior to any test use of the Emergency Alert System.

(2)

Service to public facilities. The company shall provide, on request by the borough, at each public, private and parochial school, fire station, police buildings, public libraries and borough buildings and such public auditoriums and institutions as are requested by the borough with a single drop and basic service without charge. Additional drops and service will be charged to the facility by the company at cost to the company of time and material only.

(3)

Public access/leased channel. The company shall maintain at least one specially designated, noncommercial public access/leased channel available on a first-come nondiscriminatory basis. In addition, other portions of its non-broadcast bandwidth, including unused portions of the specially designated channels, shall be available for leased uses. On at least one of the public access/leased channels, priority shall be given to part-time users. In the event that the use of public access/leased channels are shared among residents of multiple municipalities, then residents of each municipality shall have equal opportunity for "prime time" use. In the event that any sharing municipality should have an emergency, said municipality shall have priority over the use of the public access/leased channel.

(4)

Local government access channel. When the technology is available and as soon as practicable, the company shall maintain at least one specially designed channel for borough use at the borough buildings or other place so designated by the borough, and shall provide, at no cost to the borough a character generator for its exclusive use.

The company shall maintain and deliver a system of at least 43 television channels and will continue to increase the amounts of channels available to its customers as the technology and demand increase. The company's system shall carry the signals of all stations significantly viewed in Delaware County, Pennsylvania, these to include all local network and educational VHF stations and local UHF stations, and in addition, no less than two distant commercial stations. The company shall meet and/or exceed cable television industry standards as it relates to the number of channels carried.

At no time shall the company monitor the viewing habits of its customers without the express permission of said customers. Pursuant to the "Cable Communications Policy Act of 1984" and the "Cable Television Consumer Protection and Competition Act of 1992" all personally identifiable information is and shall be used solely for the normal business purpose of offering and rendering cable television service to the customer. The company will not disclose personally identifiable information without express permission of the customer.

The company shall conduct program origination cable casting, in addition to any automated services.

The company shall provide both portable and stationary equipment to be used by access cable casters with the aid of a technical and production staff provided by the company. Included should be equipment that can store programs for later showing. A studio located with a seven-mile radius of the borough buildings must be available to all access users on a first-come, first-serve basis. A full schedule of fees for use of equipment, studio and technical and production staff must be provided, including rates for portable facilities if they differ. Rates may give preference to noncommercial users.

Option of borough to require company to provide funds for purchase of public access facility.

(1)

At the option of the borough, the borough may require in a franchise agreement that the company shall provide to the borough sufficient funds for the purchase of one public access facility located within the borough municipal complex at the property formerly known as "Workmen's Circle." Said facility shall include an adequate studio, editing suites, control room, playback area, administrative and training space, tape, set and equipment storage space, and all property shall be secured, ventilated, air conditioned, heated, lighted, wired, and accessible to the handicapped. The franchise agreement may also require that the company provide equipment to fully equip the facility, including but not limited to, the studio, separate portable equipment suitable for community use, automated playback equipment, and control facilities, so that signals can be received on or originated from the facility and then routed from the facility to the appropriate channels of the cable system.

(2)

This provision shall not take effect until such time as any cable system operator conducting business in the County of Delaware provides a similar facility to any county municipality. Thereafter, and in the event the borough has entered into any franchise agreement pursuant to this chapter, the borough shall have the option of opening negotiations with any company to amend any said franchise agreement to include this provision. Said negotiations with an existing franchisee of the borough say not begin until after 30 days' written notice to company from the borough.

§ 135-7 Installation of signal distribution facilities.

The company shall make available signal distribution facilities to all residents of the borough, when granted permission by the property owner, subject to all provisions of this chapter.

§ 135-8 Programming regulations.

The company must obtain a written permit from the borough to provide segments of subscribers any specialized services that will not be available to all subscribers. All requests shall demonstrate that the service is not contrary to the public interest and will not affect the company's ability to deliver service to other users and subscribers.

The borough shall not prohibit or limit any program or any class or type of program or otherwise control the communications or signals transmitted by the company or impose discriminatory or preferential fees in any manner that would tend to encourage or discourage programming of any particular type, directly or indirectly, and shall not promulgate any regulation that would interfere with the right of free speech by means of cable television.

The company shall not prohibit or limit any programs or class or type of program presented over a leased channel or any channel made available for public access or educational purposes.

§ 135-9 Franchise fee to be paid to the borough.

The company shall pay to the borough 5% of gross annual receipts of the company or the maximum allowable amount as dictated by the FCC regulations, effective immediately on the effective date of enactment by the FCC. Gross receipts shall mean any and all compensation and other considerations in any form paid by and due or owing by subscribers to the company or any lessee of the company from the sale of its services and facilities to said subscriber or lessee of the company within the limits of the borough. All installation charges, reconnection charges, service charges and charges for inspection, repair or modification of installations, all advertising revenue and all sales commissions from all present and future sales channels, including "pay per view" channel revenues shall be included in said sum.

Payments due during the term of this franchise shall be due and payable on or before April 1 of each year. These payments are in consideration of the company's use of the streets and other facilities of the borough in the operation of the cable system and for the municipal supervision thereof. These payments shall be in addition to any other tax or payment owed to the borough by the company.

The company shall file with the borough within 90 days of the expiration of any fiscal year (as defined by the borough's accounting procedures and policies) during which the franchise is in force, financial statements certified by an independent accountant in accordance with generally accepted accounting principles and any interpretations thereof by the American Institute of Certified Public Accountants. In addition, the company shall cause to have performed, at its own expense, an audit of the accounts by an independent auditor agreed to by the borough. Said audit shall be in accordance with the Statement of Auditing Standards #14 as issued by the Auditing Standards Executive Committee of the American Institute of Certified Public Accountants "Special Reports." The auditor's opinion shall contain assurance that the company is in compliance with the financial terms and provisions of this chapter, or in the event that the auditor determines that the company is not in compliance of this chapter, he shall so indicate to what extent the noncompliance exists. In addition to the normal adherence for applying audit procedures the auditor shall perform such work as may be necessary to assure the borough that gross revenues as defined in Subsection A are properly stated, and that the borough has received all income to which it was entitled during the specified fiscal year.

The company shall provide to the borough a copy of its Annual Report each year of the franchise.

§ 135-10 Liability and insurance requirements.

By its acceptance of the franchise, the company shall agree to indemnify, hold harmless and defend the borough from and against any and all costs, expenses (including reasonable legal fees), liabilities, suits, penalties, claims or demands of any kind asserted on behalf of any person, organization or governmental agency or authority arising out of:

(1)

Any act or activity relating to the granting of the franchise to the company or to the operations conducted thereunder including any copyright infringements;

(2)

Any failure by the company to abide by or perform any of the terms, conditions or provisions of the franchise;

(3)

Any failure of the company to comply with any statutes, ordinances, regulations or orders of any governmental authority; or

(4)

Any bodily injury (including death) or property damage arising with respect to the franchise.

The company, by its acceptance of the franchise, shall agree to maintain throughout the terms of the franchise hereunder liability insurance insuring the borough and the company with regard to all damages mentioned in Subsection A, above, in the minimum amounts of:

(1)

Comprehensive general liability insurance written on an occurrence basis with a combined single limit of no less that $1,000,000 for bodily injury or death, property damage and personal injury.

(2)

The maximum limits of coverage for Workers Compensation and vehicle insurance allowable by law from a carrier acceptable to Council.

The company, by its acceptance of the franchise, shall maintain throughout the term of the franchise a faithful performance bond running to the borough in the penal sum of $100,000 conditioned that the company shall well and truly observe, fulfill and perform each term and condition of this chapter and that in case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and surety thereof by the borough for all damages resulting from the failure of the company to well and faithfully observe and perform any provision of this chapter.

The insurance policy and bond obtained by the company in its compliance with this section must be written by an insurance company acceptable to Council and such insurance policy and bond, along with written evidence of payment of the required premiums, shall be filed and maintained with the Borough Secretary during the term of the franchise.

All expenses of the above noted insurance and bond shall be paid by the company.

§ 135-11 Cable Television Advisory Council.

At the option of Council, a Cable Television Advisory Council may be established to manage, promote and develop the best use of the channels, equipment and facilities for public, educational and governmental use provided under any franchise and to advise and make recommendations to Council as to the conduct and policies of the company and review and evaluate the cable system offered by the company.

§ 135-12 Consumer protection provisions.

The company shall maintain an office in Delaware County, Pennsylvania which shall be open during all usual business hours, have a listed telephone number and be so operated that complaints, inquiries and requests for repairs and adjustments from the borough or the public and requests for use of facilities by the borough or its designated representative may be received at any time.

The company shall render sufficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible.

Service calls for maintenance or repairs shall be preformed at no charge; provided, however, that if such maintenance or repair is required as a result of damage caused by a subscriber or as a result of subscriber's personal equipment, then the company may charge a reasonable cost for time and material.

The company shall give at least 30 days' notice to subscribers and to the township of any change in programming decisions or channel realignment.

The company shall provide parental control devices to all subscribers who wish to be able to cut off any objectionable channel or channels of programming from the cable system entering the subscriber's home.

All charges by the company for installation, service, maintenance and/or repairs for the cable system to subscribers shall be in accordance with the provisions of the "Cable Communications Policy Act of 1984" and the "Cable Television Consumer Protection and Competition Act of 1992."

§ 135-13 Indemnification.

The company shall fully indemnify, defend and hold harmless the borough, its officers, boards, commissions, elected officials, agents, attorneys, representatives, servants and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities and judgments for damages, including, but not limited to, expenses for legal fees, whether suit be brought or not, and disbursements and liabilities incurred or assumed by the borough in connection with:

(1)

Damage to persons or property, in any way arising out of or through the acts or omissions of the company or the borough, their respective servants, officials, agents, attorneys, representatives or employees or to which the company's or the borough's negligence or that of their respective servants, agents, officials, attorneys, representatives or employees shall in any way contribute.

(2)

Requests for relief arising out of any claim for invasion of the right of privacy; for the violation of infringement of any copyright, trademark, trade name, service mark or patent; or of any other right of any person, firm or corporation, excluding claims arising out of or relating to the borough's own programming.

(3)

Any and all claims arising out of the company's failure to comply with the provisions of this franchise chapter or any federal, state or local law, ordinance or regulation applicable to the company or the CATV system.

(4)

Any and all claim which the company may now or hereafter have or claim to have against the borough, its servants, agents, attorneys, representatives, employees or officials, due to or arising out of damage to any of the company's property or equipment, including, without limitation, the resulting or consequential loss of income, injury to reputation, or any other resulting or consequential damages of any kind, caused by or resulting from acts or omissions of the borough or any of its servants, agents, attorneys, representatives, employees or officials.

(5)

Any and all disputes arising out of a claim wherein damages or other relief is sought as a result of the borough's cable or communications franchising procedure or as a result of granting or renewal of the cable communications franchise, or as a result of the borough's failure to award a franchise to any other person, partnership, corporation or other legal entity.

If suit be brought or threaten against the borough, either independently or jointly with the company, or with any other person or municipality, the company upon notice given by the borough, shall defend the borough at the cost of the company. If final judgment is obtained against the borough, either independently or jointly with the company or any other defendants, the company shall indemnify the borough and pay such judgment with all costs and satisfy and discharge the same.

The borough reserves the right to cooperate with the company and participate in the defense of any litigation either through intervention or otherwise. The company shall pay upon receipt of written demand from the borough, all expenses incurred by the borough in defending itself with regard to any matters in this section. These expenses shall include, but not be limited to, attorneys fees, and the reasonable value of services (as determined by the borough) rendered by the borough or any of its employees, officials, attorneys, servants, agents or representatives.

The borough is in no manner or means waiving any governmental immunity it may enjoy or any immunity for its agents, officials, servants, attorneys, representatives and/or employees.

The company shall make no settlement in any matter identified above without the borough's written consent, which shall not be unreasonably withheld. Failure to inform the borough of settlement shall constitute a breach of this franchise chapter and the borough may seek any redress available to it against the company whether set forth in this chapter or under any other municipal, state or federal law.

If the borough awards any additional cable communications franchise in any future franchise process to a firm other than the company, then the company agrees that it will not bring, or cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the borough, its elected officials, officers, boards, commissions, employees, representatives, servants, agents or attorneys for any award of a franchise made in conformity with this chapter, Pennsylvania Law, the "Cable Communications Policy Act of 1984" and the "Cable Television Consumer Protection and Competition Act of 1992."

All rights of the borough pursuant to the indemnification, insurance, letter of credit or performance bond(s), as provided for by this chapter, are in addition to all other rights the borough may have under this chapter or any other ordinance, rule, regulation or law.

The borough's exercise of or failure to exercise any rights pursuant to any section of this chapter shall not affect in any way the rights of the borough subsequently to exercise any such rights or any other right of the borough under this chapter or any other ordinance, rule, regulation or law.

It is the purpose of this section to provide maximum indemnification to the borough under the terms and conditions expressed and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the borough by the company.

The provision of this section shall not be dependent or conditioned upon the validity of this chapter or the validity of any of the procedures or agreements involved in the renewal of the franchise, but shall be and remain a binding right and obligation to the borough and the company even if part or all of this chapter, or grant or renewal of the franchise, is declared null and void in a legal or administrative proceeding. It is expressly the intent of the company and the borough that the provisions of this section survive any such declaration and shall be a binding obligation of and inure to the benefit of the company and the borough and their respective successors and assigns, if any.

§ 135-14 Effective date of franchise.

The rights, duties and liabilities granted to the company pursuant to this chapter shall be effective upon execution of a contract between the Borough of Media and the company, binding the parties to abide by all conditions of the chapter.

§ 135-15 Repealer.

All ordinances or parts of ordinances in conflict with the provisions of this chapter are hereby repealed.

To the extent that the Federal Communications Commission shall make revisions to regulations in any area pertinent to this chapter, this chapter may be amended.

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holdings shall not affect the validity of the remaining portions hereof.