[HISTORY: Adopted by the Board of Commissioners
of the Township of Butler 6-5-1995 by Ord. No. 742. Amendments noted where
applicable.]
For the purpose of this Franchise, each of the
following terms shall have the meaning ascribed below. 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.
Those channels set aside for specific access purposes, including
but not limited to public, educational and government channels.
All written proposals, in whatever form, made by the grantee
to the Township concerning construction, rendering of services, maintenance
or any other matter pertaining to the cable television system identified
herein.
Any service or tier of services which include the retransmission
of local television broadcast signals, access channels and any other
channels and services defined for basic cable service by the FCC.
A system of poles, wires, cables, fibers, lines, underground
conduits, converters, equipment, appliances and/or facilities designed,
constructed or used for the purpose of production, receiving or amplifying,
transmitting and distributing electronic, primarily radio and television,
signals and other information or matter to or from customers of the
grantee within the Township.
The County of Butler.
That administrative agency of the federal government responsible
for cable television regulation on a national level or its lawful
successor.
The permission, right and privilege or authority given to
construct, operate and maintain a cable television system within the
Township.
That set of facts and circumstances which, in an individual
case, a reasonable person would adjudge to be beyond the grantee's
reasonable control and which would therefore represent a justifiable
excuse of performance. Depending upon the facts and circumstances,
good cause may include, but shall not be limited to, delays or interruptions
arising from necessary utility change, rearrangements, power outages,
the fulfillment of governmental or regulatory restrictions or requirements,
national emergency, uncontrollable material shortages, fire, earthquake
or the elements and Acts of God.
The person, firm or corporation to whom or to which a franchise
under this agreement and ordinance is granted by the Township and
the lawful successor and assignee of such person, firm or corporation.
Any and all compensation in the form of gross revenue, received
directly or indirectly from subscribers or users in payment for basic
and premium cable television system services received within the Township.
Gross revenue shall include convertor, remote control rental fees,
installation charges, and any and all charges that are billable to
subscribers on the monthly bill; except that gross revenue shall not
include any late fees or taxes on service furnished by the grantee
imposed directly on any subscriber or user by any city, state or other
governmental unit and collected by the grantee for such governmental
unit.
The Township's solicitor or assistant.
Any individual or association of individuals or any firm,
corporation or other business entity.
The Commonwealth of Pennsylvania.
The surface of and the space above and below any public street,
road, highway, freeway, land, path, public way or place, alley, court,
sidewalk, boulevard, parkway, drive or other easement now or hereafter
held by the Township for the purposes of public travel, and shall
include such other easements as the rights-of-way as shall now be
held or hereafter by the Township which shall, within their proper
use and meaning, entitle the Township and its grantee to the use thereof
for the purpose of installing or transmitting signals over poles,
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, attachments and other property as may be ordinarily necessary
and pertinent to a cable television system.
Butler Township, Butler County, Pennsylvania.
The present governing body of the Township or any future
board constituting the legislative body of the Township.
The person designated by the Township of Butler, Pennsylvania,
responsible for oversight of this Franchise.
The existing or succeeding chief administrative officer of
the Township or his designate.
A.Â
In consideration of the within undertakings by the
grantee, the Township agrees that the grantee shall have, and hereby
confirms and grants unto the grantee, the right, license and privilege
to construct and reconstruct, to install, maintain, repair, replace
and remove, and solicit to sell to customers, subscribers, users and
advertisements for, and otherwise to own, promote and operate, a cable
television system within the Township.
B.Â
The right, license and privilege hereby granted shall
not be exclusive, and the Township reserves the right to grant a similar
franchise to any person at any time.
C.Â
The right, license and privilege herein granted and
confirmed shall be deemed to include a continuing right to enter upon
and to use and occupy the surface, subsurface and space above or below
any public streets, lanes, alleys, paths, ways, bridges and viaducts
within the Township, when and to the extent necessary to carry out
the intent and purposes of this agreement; subject, however, to limitations
and qualifications herein contained.
D.Â
In exercising the right, license and privilege granted
and confirmed hereby, the grantee shall be and remain subject to and
shall comply with all federal, state and local laws, rules and regulations
applicable to it in the conduct of the activities contemplated hereby.
In cases where existing poles or other structures,
conduits or other facilities owned or leased by public utilities or
other third parties having the right to permit attachment thereto
or location therein or thereon of the system by the grantee are not
available or are impractical for that purpose, then the proposed means
of attachment, construction or conduit shall be submitted to the Township
designate by drawings, plans and explanatory addenda at least 30 days
before such proposed attachment, installation or construction, and
shall be subject to his approval, in writing, before commencement
of such attachment, installation or construction, and such approval
shall not be unreasonably withheld, and the Township designate shall
advise the grantee of its determination within 20 days after receipt
of the grantee's proposed means of attachment, construction or conduit.
A.Â
Use. Pole attachments and the construction, installation,
repair and replacement of basic system hardware and the operation
and removal of the system and all parts thereof by the grantee within
the Township shall be conducted in such manner as to cause minimum
interference with the proper use of streets, lanes, alleys, bridges
and viaducts and other public places, and to cause minimum interference
with the rights or reasonable convenience of the property owners,
tenants or occupants who adjoin any of said streets, lanes, alleys,
bridges, viaducts and other public places.
B.Â
Restoration. In the event of any disturbance caused
by the grantee's activities hereunder to the pavement or other surfacing
as to which the Township is responsible, the grantee, at its own cost
and expense, shall replace and restore all such paving, sidewalk,
driveway or surface so disturbed in a good and workmanlike manner
and to as functionally sound a condition as before said activities
were commenced, and shall be completed within 60 days of the disturbance
or such longer period as may be approved by the Township designate.
All such replacement and restoration by the grantee shall be subject
to the approval of the Township designate, and such approval shall
not be unreasonably withheld.
C.Â
Relocation. In the event that, at any time during
the existence of the within right, license and privilege in the grantee,
the Township elects to alter or change the grade, alignment or paved
width of any street, lane, alley, bridge or viaduct or other public
way, the grantee, upon notice by the Township and at its own expense,
shall remove and relocate any affected part of the system within 30
days of the date of notice or such reasonable extension thereof as
may be granted by the Township designate considering the circumstances
of the case.
D.Â
Placement of fixtures. The grantee shall not place
the system or any part thereof where the same will interfere with
any gas, electric, existing telephone or telegraph line or fixture,
water hydrant or main, or in such manner as would interfere with the
usual travel on the streets, lanes, alleys, bridges and viaducts and
other public places of the Township.
E.Â
Temporary removal. Upon the request of any person,
firm or corporation holding a moving permit issued by the Township
or other governmental regulatory agency having jurisdiction of the
matter, by which permit any building or buildings, large pieces of
equipment or structural materials or the like are to be moved from
place to place, the grantee shall temporarily raise or lower its system
as and to the extent necessary to permit the moving of such buildings,
equipment, structural materials and the like, provided that the expense
of such temporary raising or lowering of the system or any part thereof
shall have been paid or tendered by the person, firm or corporation
requesting the same. The grantee shall be given not less than 10 days'
advance notice to arrange for such temporary changes to its system.
F.Â
Protective barriers. Any opening in the streets or
other public ways made by the grantee in the course of installation,
operating, maintenance or removal of equipment, structures, facilities,
apparatus and appurtenances shall be guarded and protected at all
times by the placement of adequate barriers, fences or boarding or
as otherwise directed by the Township designate. Whenever it is deemed
necessary by the Township, the grantee shall install steel plates
to allow a public way to remain usable while openings or obstructions
exist.
G.Â
Tree trimming. The grantee shall have the authority
to trim trees which are located on or which overhang streets, alleys,
sidewalks and public places of the Township to the extent that such
trimming activities are minor in nature or required to be performed
without delay due to the risk of danger to personnel or property damage
arising by reason of the location of such trees. The grantee shall
have the authority to perform all other tree-trimming activities only
with the prior approval of the Township, and such approval shall not
be unreasonably withheld. All trimming shall be at the expense of
the grantee.
H.Â
Underground requirements. In such sections, if any,
of the Township in which all cables, wires and other like facilities
of public utilities are required to be and are placed underground,
the grantee shall place its cables, wires and other like facilities
underground.
I.Â
Moving of system from traffic, safety or other utilities.
The grantee shall, at its expense, protect, support, temporarily disconnect,
relocate in the same street or other streets or remove from the street
any property of the grantee when required by the Township by reason
of traffic conditions, public safety, street vacation, freeway and
street construction, change or establishment of street grade, installation
of sewers, drains, gas or water pipes, power lines, signal lines and
tracks and other types of improvements by the Township or public agencies.
J.Â
Inspection. The Township shall have the right to inspect
all pole attachments, installation, construction, repair and replacement
of basic system hardware, and the removal of the system or any part
thereof to ensure compliance with this Franchise.
A.Â
Construction and maintenance of the system shall be
in accordance with the provisions of the National Electric Safety
Code of the National Board of Fire Underwriters, and such other applicable
laws of the State of Pennsylvania, County of Butler and regulations
of the Township which may be lawfully in effect from time to time.
B.Â
All structures, lines, equipment and connections in,
over, under and upon the streets of the Township, wherever situated
or located, shall at all times be kept and maintained in a safe, suitable
condition and in good order and repair.
A.Â
In consideration of the right, license and privilege
granted hereby and in order to defray any costs and expenses of the
Township in the execution, delivery, performance and administration
of this Franchise, the grantee shall pay to the Township, by the 30th
of the month, an amount equal to 4% of the gross receipts of the grantee
for the previous month. The Township reserves the right to increase
or decrease the franchise fee upon 90 days' written notice to the
grantee. Any such increase or decrease shall comply with all federal
and state regulations.
B.Â
Not later than 60 days after the close of each fiscal month of the grantee during the term of this Franchise, the grantee shall file with the Township designate, a written report, certified by the grantee's chief accounting officer, setting the amount of the gross revenue as defined in § A304-1.
C.Â
The Township shall have the right to inspect and audit
the grantee's records from which the payments hereunder are computed
and to recompute the amount of such payments to correct errors in
the computation and reporting of same and to correct errors in the
amount due the Township disclosed by the audit.
All subscriptions for services under this Franchise
shall be on a voluntary basis and may be terminated at any time by
the subscriber. Under no circumstances shall the grantee offer services
utilizing a "negative option" marketing plan.
A.Â
The grantee, at all times, shall provide all subscriber
services and to the extent required to be provided by applicable deferral
and state rules and regulations from time to time in effect.
B.Â
The grantee shall provide channel space for the carriage
of public, educational and governmental access in accordance with
the applicable laws.
C.Â
Additional services may, at the sole discretion of
the grantee, be provided by the grantee, including services for which
a per-program, per-service or per-channel charge is made, consistent
with applicable federal and state rules and regulations.
A.Â
Upon the annexation of any territory to the Township,
the portion of any utility that may be located or operated within
such territory and upon the streets, alleys or public grounds thereof
shall thereafter be subject to all the terms of this grant as though
it were an extension made thereunder.
B.Â
Grantee shall, subject to the provisions of this Franchise,
be required to permit any noncommercial dwelling to have access to
the services of the grantee, subject only to the payment of applicable
rates for services. The service shall be furnished to all paying customers
without unlawful discrimination as to rates and services within the
Township or any future area annexed to the Township. The grantee shall
permit any person to have access to the services of the grantee within
90 days of the date electric services become available to a person
in areas of new construction with the Township.
C.Â
The grantee shall provide complimentary basic cable
television service to all public schools, libraries, police and fire
stations, and any other public building so designated by the Township.
This service includes the free installation of a single outlet to
be located at a Township-designated location within each building
and regular monthly cable service.
A.Â
The grantee shall investigate and resolve all subscriber
complaints regarding the quality of service, equipment malfunctions
and similar matters expeditiously and in accordance with the following
procedure:
(1)Â
The grantee shall have qualified personnel available
during normal working hours to investigate and resolve subscriber
complaints;
(2)Â
The grantee shall maintain a telephone answering service
during times other than normal business hours with a qualified technician
on call 24 hours a day to respond to emergencies;
(3)Â
Upon notification of a service complaint, the grantee
shall dispatch a qualified employee to investigate the complaint and
adjust, repair or replace grantee equipment as necessary to resolve
the complaint. The grantee shall not be responsible for malfunctions
of any television receivers or other equipment owned or operated by
any subscriber;
(4)Â
All complaints shall be investigated and resolved
within 24 hours after initial notification to the grantee (absent
unusual circumstances); and
(5)Â
The grantee shall maintain a service log in which
an entry shall be made of each complaint, the date of notification
thereof, the nature of the complaint and the means by which it was
resolved. The Township reserves the right to inspect that log at any
time.
B.Â
In the construction, maintenance and operation of
the system, the grantee shall, at a minimum, at all times, fully comply
with technical standards which have been or which hereafter may be
adopted by the Federal Communications Commission, including (without
limitation), if applicable, requirements relating to channel capacity,
bandwidth and periodic testing. Further, should any federal, state
or local governmental unit with jurisdiction establish technical standards
that exceed those of the Federal Communications Commission, the grantee
will comply therewith when and to the extent required by such governmental
unit, unless to require the grantee to do so would be held invalid
by the Federal Communications Commission or a court of administrative
tribunal of competent jurisdiction. The technical quality of the service
provided by the grantee shall be sufficient to provide subscribers
with uniformly high quality television reception. The grantee shall
maintain the system in good repair and working order at all times.
A.Â
Rates and charges for installation, monthly service
fees, equipment rental, additional outlets, moves, changes and any
other rates charged by the grantee to its subscribers and users shall
be regulated according to current and subsequent Federal Communications
Commission rules and regulations.
B.Â
The grantee shall offer the services of the system
within the Township on terms and conditions which are uniform and
nondiscriminatory, except as otherwise set forth herein, to the fullest
extent possible.
The grantee shall not, as to rates, charges,
service, service facilities, rules, regulations, or in any other respect,
make or grant unlawful undue preference or advantage to any person,
nor subject any person to any unlawful prejudice or disadvantage,
provided that nothing in this Franchise shall be deemed to prohibit
the establishment of a graduated scale of charges and classified rate
schedules to which any customer coming within such classification
would be entitled. Connection and/or service charges may be waived
or modified during promotional campaigns of the grantee.
A.Â
The grantee shall, at all times during the term of
this Franchise, maintain in full force and effect, at its own cost
and expense, a general comprehensive liability insurance policy protecting
its representatives, officials and employees against liability for
loss or damage for personal injury, death and property damage occasioned
by the operations of the grantee under this Franchise, with minimum
liability limits of:
B.Â
Such policy of insurance, and any certificate evidencing
the same, shall name the Township, its representatives, officials
and employees as additional insureds, and shall also provide that
30 days' prior written notice of intention not to renew, cancellation
or material change be given to the Township.
The right and privilege herein granted shall
take effect and be in force from and after November 1, 1994, and shall
continue in force and effect for a period of 15 years from the effective
date of this Franchise. Upon the expiration of said period, and provided
that the grantee has complied with the terms and conditions hereof,
the grant and provisions hereof may be renewed under the provisions
of the Cable Communications Act of 1984, Section 626.
It is understood that this Franchise sets forth
the minimum requirements to be performed by the grantee. Therefore,
in the event and to the extent that the terms and provision hereof
shall be superseded and preempted by or become inconsistent with state
law or federal law (including rules and regulations promulgated by
the Federal Communications Commission, then and in each such event,
it shall be the right of each party hereto to take such action (including
the execution of delivery of written instruments and the adoption
of ordinances and resolutions) within 60 days after such event as
shall be reasonably necessary and may be reasonably requested to so
amend or modify, in writing, this Franchise and to preserve the written
contract for rights and benefits of the grantee and fulfill the intent
and purposes of this Franchise.
If any subsection, sentence, clause, phrase
or portion of this Franchise is for any reason held invalid or unconstitutional
by any court or administrative tribunal of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent
provision, and such holding shall not affect the validity of the remaining
portions hereof.
Notwithstanding any provision of this Franchise
to the contrary, the Township agrees that in the event of any ambiguity
with respect to the terms and conditions of this Franchise, or dispute
as to meaning, the Township shall, in conjunction with the grantee,
make a good-faith effort to establish the meaning of such term of
condition in a manner consistent with the parties' original intent
of the language.
The grantee shall not engage in the business
of selling, leasing or repairing television or radio receivers in
connection with the operation of its cable television system; nor
shall the grantee and its employees race or attempt to direct its
subscribers to deal with any particular firm or person engaged in
such business.
In the event that the grantee's performance
of any of the terms, conditions, obligations or requirements of this
Franchise is prevented or impaired due to any cause beyond its control
or not foreseeable, such inability to perform shall be deemed to be
excused, and no penalties or sanctions shall be imposed as a result
thereof, provided that the grantee has notified the Township, in writing,
within 30 days of its discovery of the occurrence of such an event.
Such causes beyond grantee's control or not foreseeable shall include
but shall not be limited to acts of God, civil emergencies and possible
labor unrest or strikes including by telephone or power company owners
of said poles.
In the event that the grantee shall violate
any of the terms or provisions of this Franchise, such shall be cause
for forfeiture of the right and privilege granted to be grantee by
this Franchise and all rights hereunder; provided, however, that the
Township shall first give written notice to the grantee of such alleged
violation or failure on the part of the grantee and the continuation
of the grantee of such violations, failure or default for a period
of 15 days, unless the public interest requires a more prompt compliance
by the grantee. Further, the grantee reserves the right to terminate
cable television service and this Franchise after six months' written
notice to the Township and the subscribers or until the replacement
service or Franchise is granted, whichever shall first occur.
In the event that the Township enters into a
franchise, permit, license, authorization or any other agreement of
any kind with any other person or entity other than the grantee for
the purpose of constructing or operating a cable television system
or providing Cable Television Service to any part of the franchise
area, and such Franchise, permit, license, authorization, or agreement
contains terms which are more favorable than this Franchise, the grantee
may request that the Township Commissioners amend this Franchise,
so as to give the grantee the benefit of any such more favorable terms.
The Township shall rule on such request using its reasonable discretion.
This Franchise shall bind and inure to the benefit
of the Township and the grantee, and their respective successors and
assigns; provided, however, that without the written consent of the
Township, which consent shall not be unreasonably withheld or delayed,
the grantee shall not assign the right, license or privilege herein
granted to any person, firm or corporation other than a person, firm
or corporation affiliated with it. The terms and provisions of this
Franchise may not be amended or modified, by ordinance or otherwise,
except as agreed upon, in writing, by both parties hereto.
If any section, subsection, clause or phrase
of these regulations is for any reason held to be invalid or unconstitutional,
such invalidity or unconstitutionality shall not affect the validity
or constitutionality of the remaining portions; and each section,
subsection, clause or phrase hereof would have been prepared, proposed,
adopted, approved and ratified irrespective of the fact that any one
or more sections, subsections, sentences, clauses or phrases be declared
invalid or unconstitutional.
All ordinances or parts of ordinances or regulations
in conflict with these regulations or inconsistent with the provisions
hereof, are hereby repealed to the extent necessary to give these
regulations full force and effect.
These regulations are necessary for the immediate
preservation of the public health, safety, morals and general welfare
and shall be effective immediately upon passage and publication.
