JACKSON TOWNSHIP CAMBRIA COUNTY PENNSYLVANIA ORDINANCE NO. "fis GRANTING A FRANCHISE TO JOHNSTOWN CABLE T.V., TELEPROMPTER CABLE SYSTEMS, INC., I AND TELEPROMPTER CORPORATION, ITS PARENT COMPANY, ITS SUCCESSORS AND ASSIGNS TO MAINTAIN A COMMUNITY TELEVISION SYSTEM IN THE TOWNSHIP OF JACKSON, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE, PROVIDING FOR THE TOWN- I ::~!c~~b~tgk;~:a~~i~r~;~nih!~i~~t~~nt~; ~~~;;~~si~~~:i!:npi~~i:1nga~~r A LINE EXTENSION FORMULA. CONTENTS I ~ Section 1.01,!' I, ARTICLE II - DEFINITION Title i ARTICLE I - TITLE Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Section 2.06 Section 2.07 Section 2.08 Section 2.09 Section 2.10 Section 2.11 Section 2.12 Section 2.13 Municipal Designation Federal Communications Commission Companies Council Person Audio-Television Basic CATV Service Expanded CATV Service Subscriber Gross Annual Basic Subscriber Revenues Senior Citizens School ARTICLE III - GRANT OF AUTHORITY Section 3.01 Section 3.02 Section 3.03 Section 3.04 Section 3.05 / Section 3.06 Grant Term Non-Exclusive Police Power of Township Transfer of Grant System Construction & Extension Policy ARTICLE IV - PUBLICATION COSTS ARTICLE V - COSTS OF LITIGATION ARTICLE VI - CONDITIONS ON STREET OCCUPANCY Section 6. 01 SeGtion 6.02 Section 6.03 Section 6.04 Section 6.05 Section 6.06 Section 6.07 Section 6.08 Minimum Interference _Disturbance of Streets Street Alteration Location of Fixtures Moving of Building Tree Trimming Compliance with Regulat'ions Use of Poles for Fire and Police
ARTICLE VII - SERVICE STANDARDS Section 7.01 Section 7.02 Service in Compliance with Local/State Law Interruption of Service for Repair ARTICLE VIII - RATES Section 8.01 Section 8.02 Section 8.03 Uniformity Public Buildings Hearings ARTICLE IX - FRANCHISE FEES Section 9.01 Section 9.02 Section 9.03 Section 9.04 Fee Sales Tax Financial Reports Other Taxes and Fees ARTICLE X - INDEMNIFICATION FROM LIABILITY Section 10.01 Section 10.02 Section 10.03 Personal Injury or Property Damage Insurance Duty to Defend ARTICLE XI - NEGLIGENCE INDEMNIFICATION ARTICLE XII - COMPANY RULES ARTICLE XIII - SUBSCRIBER COMPLAINTS Section 13.01 Section 13.02 Section 13.03 Maintenance of Local Office Repair Force Municipal Responsibility ARTICLE XIV - REGULATION ARTICLE XV - PENALTIES Section 15.01 Section 15.02 Forfeiture of Ordinance Acts of God ARTICLE XVI - SEVERABILITY ARTICLE XVII - ORDINANCE SUPERSEDES ALL PREVIOUS ORDINANCES
The Township of Jackson, Cambria County, ~ennsylvania, hereby ordains as follows: ARTICLE I TITLE Section 1. 01. This Ordinance shall be known and may be cited as the "Cable TV Community Television Company Franchise Ordinance." ARTICLE II DEFINITION Section 2.01. For the purpose of this Ordinance, the following terms,, phrases, words and their derivations shall have the meaning given herein. Section 2.02. Township is the Township of Jackson, a municipal corporation of the State of Pennsylvania, in its present incorporated form or in any later reorganized, consolidated, enlarged or re-incorporated form. Section 2.03. Section 2.04. "FCC" means Federal Communications Commission. "Companies" are the grantees of rights under this Franchise, i.e., Johnstown Cable T.V., Teleprompter Cable Systems, Inc., and Teleprompter Corporation. Section 2.05. "Supervisors" is the Board of Supervisors of the Township of Jackson. Section 2.06. "Person" is any natural person, firm, partnership, association, domestic or foreign corporations, company or organization of any kind. Section 2.07. Wherever the words "audio" and "television" shall appear they shall mean a system for simultaneous reception and/or distribution of audio signals and visual images or the separate reception and/or distribution of either of them by means of electrical impulses. Section 2.08. "Basic CATV Service" means the total of.all of the following: (a) (b) the transmission of all broadcast video channel signals required by the FCC; the transmission of the Public, Educational, and Local Government Access channel signals;
(c) (d) the transmission of the Local Origination channel signals; the transmission of such other cablecast channel signals as are required by the FCC to match the number of broadcast channel signals being transmitted. Basic CATV Service shall exclude Expanded CATV Service. See Section 2.09. Section 2.09. "Expanded CATV Service" shall mean any communications service in addition to Basic CATV Service provided by the Companies either directly or as a carrier for their subsidiaries, affiliates or any other person engaged in communications services, including, but not by way of limitation, pay TV, burglar alarm service, data or other electronic transmission services, facsimile reproduction service, meter reading services and home shopping services. Section 2.10. "Subscriber" shall mean any person, firm, corporation or other entity who or which elects to receive, for any purpose, a service provided by the Companies by means of or in connection with the CATV system. Section 2.11. "Gross Annual Basic Subscriber Revenues" shall mean any and all compensation and other consideration derived directly or indirectly, in payments or lump sum, by the Companies from subscribers in providing Basic CATV Service. Gross Annual Basic Subscriber Revenues shall not include revenues derived from Expanded CATV Service such as per-program or per-channel charges, leased channel revenues, advertising revenues, installation charges or any taxes on services furnished by the Companies imposed directly on any subscriber or user by any City, state or local governmental unit and collected by the Companies for such governmental unit. Section 2.12. "Senior Citizens" shall mean persons who are 65 years of age or older and who are the heads of their household. Section 2.13. "School" means any institution of the Public School System, any non-profit day care center, and any other non-profit education Insfitufion with so-enrolled students. -2-
GRANT OF AUTHORITY Section 3.01. Whereas the Supervisors have approved the legal, character, financial, technical and other qualifications of the Companies and the adequacy and feasibility of the Companies' construction arrangements as part of a full public proceeding affording due process, there is hereby granted by the Supervisors to the Companies the right, privilege, and obligation to operate and maintain a CATV system in the Township by and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, public way and! public place, now laid out or dedicated and all extensions thereof and additions thereto in the franchise area such poles, wires, cables, conductors, ducts, conduit vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corporations including but not limited to any public utility or other grantee franchised or permitted to do business in the Township. The Grant of Authority contained herein includes the right to offer such aspects of Expanded CATV Service as the Companies from time to time may deem desirable. Section 3.02. The franchise and rights herein granted shall take effect and be in force from and after the final passage hereof and upon filing of acceptance by the Companies and shall continue in force and effect for a term of ten (10) years after the effective date of this franchise. The franchise may be renewed for an additional 10 year period following a full public proceeding affording due process, in which proceeding the Companies' performance and the adequacy of this franchise ordinance will be reviewed. Section 3.03. The right to use and occupy said streets, and other public ways forthe purpose herein -set forth, shall not be exclusive,.and the Township reserves the right to grant a similar use in said streets to any other -3-
person at any time during the period of this franchise, or during the lu year renewal period if granted. Section 3.04. In accepting this franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the Township to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws enacted by the Township pursuant to'such power. Section 3.05. The Companies shall not sell, assign, lease or transfer any rights under this franchise to any person or company unless the vendee, assignee or leasee files in the office of the Township an instrument, duly executed, reciting the fact of such sale, assignment, lease or transfer, and accepting the terms and agreeing to perform all of the conditions hereof. Section 3.06. (a) Companies, whenever they shall receive a request for service from at least 13 subscribers within 1,320 feet of its trunk cable, shall extend its system to such subscribers at no cost to the subscribers for such system extension other than the usual connection fees for all subscribers, provided that such extension is technically and physically feasible. The 1,320 feet shall be measured in extension lengths of Companies' cable required for service located within the public way or easement and shall not include length of necessary service drop to the subscriber's home or premises. (b) No person, firm or corporation in the Companies' service area shall be arbitrarily refused service. However, under unusual circumstances, such as requirements for underground cable, or more than 150 feet of distance from the distribution cable to connection of service for subscribers, or a density of less than 13 subscribers per 1,320 feet of cable system, in order that existing subscribers shall not be unfairly burdened, s~rvice may be made available on the basis of a capital contribution by the prospective subscriber to Company including reimbursement for Companies I cost of material, labor and easements. -4-
ARTICLE IV -~- PUBLICATION COSTS Section 4.01. The Companies shall assume the cost of publication of this franchise as such publication is required by law. A bill for publication costs shall be presented to the Companies and shall be paid at the time. ARTICLE V COSTS OF LITIGATION Section 5.01. The Companies shall defend at their own cost and expense any litigation or proceeding brought against the Township or any litigation or proceeding in which the Township is made a party wherein the right of the Township to issue, adopt, or implement this Ordinance or any franchise issued pursuant hereto is questioned, including reimbursement of reasonable legal and consulting fees. ARTICLE VI CONDITIONS ON STREET OCCUPANCY Section 6.01. All transmission and distribution structures, lines and equipment erected by the Companies within the Township shall be so located as to cause minimum interference with the proper use of the streets, alleys, and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys, or other public ways or places. Section 6.02. In the case of any disturbance of pavement, sidewalk, street, alley, public way or other surfacing, the Companies shall, at their own expense and cost replace and restore all paving, sidewalk, street, alley, public way, or surface of any street or alley disturbed, in as good condition as before said work was commenced. Section 6.03. In event that at any time during the period of this franchise the Township shall lawfully elect to alter or change the grade of any street, alley or other public way, the Companies, upon reasonable notice by
the Township shall remove, reiay and relocate tneir poies, wil~~, caul~o, underground conduits, manholes and other cable TV fixtures at their own expense Section 6.04. The Companies shall not place poles or other fixtures where the same will interfere with any existing gas, electric or telephone fixtures, water hydrant or main, and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line 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. Section 6.05. The Companies shall, on 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 Companies shall have the authority to require such payment in advance. The Companies shall be given not less than fortyeight (48) hours advance notice to arrange for such temporary wire change. Section 6.06. The Companies shall have the 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 wit the wires and cables of the Companies, all trimming to be done at the expense of the Companies. Section 6.07. Any poles or other fixtures placed in any public way by the Companies shall be placed in such a manner as to comply with all requirements of the Township. Section 6.08. 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 Companies within the Township limits wire and pole fixtures necessary for a police and fire alarm system, which wires and fixtures to be constructed and maintained to the satisfaction ofthe Companies arrdin accordance with their specifications at the Township's expense. The Township -6-
in its use and maintenance of such wires and fixtures will at all times comply with the rules and regulations of the Companies so that there may be a minimum danger of contact or conflict between the wires and fixtures of the Companies and the wires and fixtures used by the Township. The Township shall be solely responsible for all damage to persons or property arising out of the construction or maintenance of said wires and fixtures authorized by this Section and shall save the Companies harmless from all claims and demands whatsoever arising out of the attachment, maintenance, change or removal of said wires and fixtures to the poles of the Companies. In case of rearrangement of the Companies' plant or removal of poles or fixtures, the Township shall save the Companies harmless from any damage to persons or property arising out of the removal or construction of the wires or other fixtures, ARTICLE VII SERVICE STANDARDS Section 7.01. The Companies shall maintain and operate their system and render efficient service in accordance with the terms of this Ordinance and as lawfully may be required by the State of Pennsylvania or any Federal agency. Section 7.02. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the Companies shall do so at such time as will cause the least inconvenience to their subscribers,and unless such interruption is unforeseen and immediately necessary, they shall give reasonable notice thereof to their customers. ARTICLE VIII RATES Section 8.01. The Companies shall not, as to rates, charges, service facilities, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage and the rates for installation and service within the Township shall not be in excess of those charged customers of the same category in the City of Johnstown,
provided, however, that in the event of any application for a change in the subscriber rate charged to the subscribers in the City of Johnstown, the Section 8.02. Nothing in Section 8.01 above shall prevent the Companies from carrying out their agreement to furnish one attachment without charge to the municipal building, for the police, for each fire station, and each school located in the Township. Nothing herein contained shall prohibit the Companies from charging a discount rate to subscribers using installations or outlets exceeding ten (10) in number of the same building, site or location. And further provided, that the Companies may charge lower rates to the subscribers who are 65 years of age or older. Section 8.03. The Supervisors may hold public proceedings (at which proceedings Companies shall have a right to be heard and to present evidence) to determine whether Companies' proposed rate increase will enable it to earn more than a fair rate of return. Companies agree to cooperate fully with the Supervisors in connection with such public proceedings and, upon request, to supply to the Supervisors all such data as may reasonably be required by it for determining the fairness of the proposed rate increase. The pendency of such proceedings shall not prevent the proposed rate increase from taking effect as scheduled, but if the Supervisors ultimately determine that a different maximum rate than that proposed by the Companies is the proper rate to enable Companies to earn a fair rate of return, then, subject to the last sentence of this paragraph, such different rates shall from the first day of the month following the date of the Supervisors' action be the maximum rate which may be charged by Companies hereunder. Nothing contained herein shall prevent Companies from challenging before any Court of appropriate jurisdiction the reasonableness of any action by the Supervisors in fixing maximum rates different from those initially set by the Companies. Companies shall give the Township Council written notice of any such application. -8-
FRANCHISE FEES Section 9.01. The Companies shall pay to the Township on or before March 1 of each year a 3% franchise fee based on gross annual basic subscriber revenues received for cable television operations in the Township for the preceding calendar year. Except as hereinafter provided, no other fee, charge or consideration shall be imposed. Payments will be made quarterly based on the preceding year's payments with adjustments made on March 1 to collect the entire 3% if necessary. In addition to the foregoing, Companies shall be required to pay to the Township 3% of the revenues received by them from Expanded CATV Service, provided that no such fee shall be due and payable until such time as the payment of said fee shall be consistent with the rules of the FCC. In the event the Federal Communications Commission shall, by subsequent rule, permit any increase in the franchise fee to an amount in excess of 3% of revenues without requiring specific approval by the Commission as to the reasonableness of such franchise fee, then the Township shall thereafter become entitled to an increase of its franchise fee to the maximum percentage amount permitted, but in no event to exceed a maximum of 5% of total revenues. Section 9.02. Sales tax or other tax levied directly on a per subscription basis and collected by the Companies shall be deducted from the gross annual basic subscriber revenues before computation of sums due the Township is made. Section 9.03. The Companies shall provide a certified annual summary report showing gross annual basic subscriber revenues received from the Township residents during the preceding year. Section 9.04. In addition to the payment specified in Section 9.01, the Companies will be required to pay all other taxes and fees of general applications imposed by state statute or ordinance, such as real estate tax, personayproperty tax, business permit, license-fee,~mercantile tax and the collection from their employees of the occupational privilege tax, and the full -9-
amount of said payment shall be made without deduction, credit thereto, or adjustment regardless of the nature or amount of said taxes or fees or any other fees, taxes or assessments levied or imposed by the Federal Government or any branch or agency thereof. ARTICLE X INDEMNIFICATION FROM LIABILITY Section 10.01. The Companies shall indemnify and hold the Township harmless at all times during the term of this franchise from and against all claims for injury or damage to persons or property both real and personal caused by the construction, erection, operations and maintenance of any structure, equipment, applicant or products authorized or used pursuant to the authority of this franchise. Section 10.02. The Companies shall carry insurance in such form and with such companies as shall be approved, by the Solicitor of the Township to protect the Township and themselves from and against any and all claims for injury or damages to persons or property, both real and personal, caused by the construction, erection, operation, or maintenance of any structure, equipment, applicance or product authorized or used pursuant to authority of this franchise and the amount of such insurance for property damage shall not be less than Two Hundred and Fifty Thousand ($250,000.00) Dollars. As to liabilit for personal injury or death, the amount of insurance shall be Two Hundred and Fifty Thousand ($250,000.00) Dollars for one person and One Million ($1,000,000 00) Dollars for more than one person. Section 10.03. The Companies, upon receipt of due notice in writing from the Township, shall defend at their own expense any action or proceedings against the Township in which it is claimed that the injury or damage arose from the Companies' activities in the operation of their cable television s_ystem~and~front and against all s::j,.aims agai11stthe\_ Townsh!J> arising out of the granting of this franchise. -10-
8.KJ. J.lJLt lu, NEGLIGENCE INDEMNIFICATION Section 11.01. It is expressly understood and agreed by and between the Companies and the Township that the Companies shall save the Township harmless from all loss, including attorneys fees, sustained by the Township on account of any suit, judgment, execution, claim or demand whatsoever, resulting from negligence on the part of the Companies in the construction operation or maintenance of their CATV System in the Township. The Township shall notify the Companies' representatives in the Township within 12 days after the presentation of any claim or demand by suit, and within 30 days after the presentation of any other claim or demand, made against the Township on account of negligence on the part of the Companies. The Companies shall have the right to assume the defense of any such claim or demand. Companies must approve any settlement. After Companies assume defense on any claim, they shall not be responsible for any counsel fees incurred by the municipality thereafter in such defense. ARTICLE XII COMPANY RULES Section 12. 01. The Companies shall have the authority to promulgate such rules and regulations, terms and conditions governing the conduct of their business as shall be reasonably necessary to enable the Companies to exercise their rights and perform their obligations under this franchise, and to assure an uninterrupted service to each and all of their customers, provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of the laws of the United States, the State of Pennsylvania, or the Rules and Regulations of the Federal Communications Commission, and shall be subject to approval by the Township and the Public Ut:iJit:y Commission of the State of Pennsylvania if such approval is necessary. -11-
ARTICLE XIII SUBSCRIBER COMPLAINTS Section 13.01. The Companies shall maintain an office, which shall be open during all usual business hours, have a publicly listed telephone which subscribers may telephone, and be so operated that complaints and requests for repairs or adjustments may be received on a twenty-four (24) hour basis. The Company to maintain an office in Cambria County. Section 13.02. The franchise shall maintain a repair force capable of responding to subscriber complaints or requests for service within twentyfour (24) hours after receipt of the complaint or request. No direct charge shall be made to the subscriber for this service. Section 13.03. Should any subscriber have an unresolved complaint regarding the quality of cable television service, equipment malfunctions, or similar matters, the subscriber shall be entitled to file his complaint with the Secretary of the Supervisors, who shall have primary responsibility for the continuing administration of the franchise and the procedures for resolving 1 complaints. The Companies shall notify each subscriber, at the time of initial subscription to the service of the Company hereafter of the procedures for reporting and resolving such complaints. ARTICLE XIV REGULATION Section 14. 01. Any modification resulting from amendment of Subpart C, Part 76 ("Federal/State/Local Regulatory Relationships 11 ) of the Rules and Regulations of the Federal Communications Commission shall be incorporated into this franchise as of the date such modifications become obligatory under FCC regulations. ARTICLE XV PENALTIES Section 15.01. Any material violation by the Companies, their vendee or successor, of the provisions of this franchise or the failure to
promptly perform any ot the prov1.s1ons tnereoi: sna.u. oe cauoe 1..u1. Lue forfeiture of this franchise and all rtghts hereunder to the Township after written notice to the Companies and the continuation of such violation, failure or default for a period of sixty (60) days after such written notice is received by the Companies or such additional time as is reasonably necessary to correct said violation, failure or default. Section 15.02. The Companies shall not be in violation of this Article and no revocation shall be effected if they are prevented from performing their duties and obligations or observing the terms and conditions of this Ordinance by an Act of God, labor disputes, manufacturers' inability to timely provide personnel or material, or other causes of like or different nature, collectively referred to as "Acts of God." ARTICLE XVI SEVERABILITY Section 16.01. It is the intention of the Supervisors of the Township that the provisions of this Ordinance are severable, and this Ordinance shall not affect or impair the validity of any other part of this Ordinance, which can be given effect without the invalid part or parts. In the event that any section is declared invalid, then such section or sections will be renegotiated by the Council and the Companies. ARTICLE XVII ORDINANCE SUPERSEDES ALL PREVIOUS ORDINANCES Section 17.01. This Ordinance hereby supersedes all previous ordinances of the Township relating to the award of a CATV franchise for the Township and shall become effective upon final passage of this Ordinance. ORDAINED AND ENACTED this \..J'/ day of {L_.._,_,/, 1979, ~ TOWNSHIP OF JACKSON, ATTEST; By ---'Z-L--~~=-e..- -=-~,_!...-...::::' :1~::...: c...;:~:::::,. ~~----; Supervisors i7 Secretary Supervisor -13-