Article 1
Cable Television

§6-101 Short Title.

This Article shall be known and may be cited as the “Cable Television Ordinance.”

(Ord. 1998-1, 4/13/1998, §10

§6-102 Definitions.

For the purpose of this Article, the following terms, phrases and words shall have the following meanings:

Municipality - the Borough of Cornwall.

Grantee - any person or entity which is granted a nonexclusive franchise pursuant to the terms of this Article.

Borough Council - the Borough Council of the Borough of Cornwall.

Person - any person, firm, partnership, association, corporation, company or organization of any kind.

Cable system - a facility that crosses public rights of way, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provided cable services as well as broadband telecommunications services to customers, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves only subscribers in one or more multiple unit dwellings not including single family dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered as a cable system to the extent such facility is used in transmission of video programming directly to subscribers; or (4) any facilities of any electric utility used solely for operating its electric utility system.

Cable service - is the provision of any lawful service through data transmission or electrical or electronic signal transmission.

(Ord. 1998-1, 4/13/1998, §2)

§6-103 Require a Franchise to Operate.

A nonexclusive franchise to construct, operate and maintain a system within all or any portion of the Municipality is required of anyone desiring to provide cable service in the Municipality. A franchise may be granted by the Borough Council by resolution or written approval of franchise application to any person, firm or corporation, whether operating under an existing franchise or not, who or which offers to furnish and provide such cable service. Such franchises shall be subject to the following conditions, in addition to those set forth elsewhere in this Article.

A.    Nonexclusive Grant. No right to use and occupy said streets, alleys, public ways and places granted pursuant to this Article shall be deemed to be exclusive, and the Municipality reserves the right to grant rights to any other qualified company at any time. The foregoing notwithstanding, in the event any material provision(s) of any franchise granted by the Municipality to any subsequent grantee is (are) more favorable (by inclusion, exclusion or altering of such material provision(s) to such subsequent grantee than the corresponding provision(s) of a previous grantee's franchise, such previous franchise shall be deemed to include all such more favorable provision(s).

B.    If Borough Council permits anyone to operate a system within the Borough without a franchise, qualifying company shall not be obligated to comply with the terms and conditions of this Article until such time as Borough Council requires such other person to apply for and Borough Council actually grants a franchise to it in accordance with the terms and conditions of this Article.

(Ord. 1998-1, 4/13/1998, §3)

§6-104 Compliance with Applicable Laws and Ordinances.

Grantees shall, at all times during the life of a franchise granted pursuant hereto, be subject to all lawful exercise of the police power by the Municipality, and to such reasonable regulation, pursuant to the exercise of such police power, as the Municipality, Commonwealth of Pennsylvania or United States of America shall hereafter by resolution, ordinance, statute or regulation provide, including:

A.    Interference. If there is any interference on any television set, radio or other electronic device not connected with the conductors or fixtures of the grantee which is caused by the conductors or fixtures of the grantee, the grantee shall immediately at its own cost and expense eliminate such interference. If such interference cannot be eliminated within 48 hours Municipality may direct the suspension of the operation of the grantee within the affected area of the Municipality until such interference is eliminated.

B.    Building Permits. In addition, the grantee shall apply for and take out building permits required by the Municipality for construction of buildings, placement of poles, attachments to bridges, and cuts into streets and sidewalks to be undertaken by grantee. Such permits will not be unreasonably withheld or delayed by the Municipality. Cost of such permits shall be considered to have been paid as part of the grantee's franchise fee payments.

(Ord. 1998-1, 4/13/1998, §4)

§6-105 Indemnification; Insurance.

Grantee shall save the Municipality harmless from any suit, judgment, claim, or demand whatsoever, arising out of the operations of the grantee in the construction, operation or maintenance of its cable television system in the Municipality, excluding any activities that are the result of gross negligence or deliberate acts or omissions of the Municipality, its officers, employees, agents, boards or commissions. The Municipality shall notify the grantee's representative in the Municipality within 10 days after the presentation of any claim or demand, either by suit or otherwise, made against the Municipality on account of any damages or losses as aforesaid resulting from the operations of the grantee. In order for Borough to assert its rights to be indemnified and held harmless, Borough must notify grantee of any claim or legal proceeding which gives rise to such right, afford grantee the opportunity to participate in and control fully any such compromise, settlement, resolution or disposition of such claim or proceeding, and cooperate fully in the defense of such claim and make available to grantee all such information under its control relating thereto. The grantee shall furnish to the Municipality, prior to the grant of a franchise hereunder, evidence in writing that the grantee has in full force and effect 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 companies authorized to do business in the Commonwealth of Pennsylvania, said insurance to cover all operations by the grantee within the Municipality. Upon request, written evidence of the maintenance of such insurance in full force and effect shall be furnished annually thereafter to the Municipality.

(Ord. 1998-1, 4/13/1998, §5)

§6-106 Grantee Rules.

The grantee may promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under a franchise granted pursuant to this Article, 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 Municipality, or the laws of the Commonwealth of Pennsylvania or the United States of America.

(Ord. 1998-1, 4/13/1998, §6)

§6-107 Conditions on Street Occupancy.

1.    Use. All transmission and distribution structures, lines and equipment erected by the grantee within the Municipality shall be so located as to cause minimum interference with the use by others of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of owners of property which abuts the said streets, alleys or other public ways and places.

2.    Restoration. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, grantee shall at its own cost and expense and in a manner approved by the Borough Engineer or other person designated by the Borough Council, 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.

3.    Relocation. In the event that at any time during the period of any franchise granted pursuant to this Article, the Municipality shall lawfully elect to alter or change the grade or location of any street, alley, or other public way grantee, upon reasonable notice by the Municipality, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense.

4.    Placement of Fixtures. Grantee, 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. Grantee shall not place poles or other fixtures where the same will interfere with any 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; those placed in alleys shall be placed close to the line of the lot abutting on said alley, and in such a manner as not to interfere with the usual travel on said alleys.

5.    Temporary Removal of Wire for Building Moving. Grantee shall, on the request of any person holding a building permit issued by the Municipality, 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 grantee shall have the authority to require such payment in advance. Grantee shall be given not less than 48 hours advance notice to arrange for such temporary wire changes.

6.    Tree Trimming. Grantee shall have the authority to the same extent that the Municipality has such authority, to trim trees and upon overhanging streets, alleys, sidewalks and public places of the Municipality so as to prevent the branches of such trees from coming in contact with the wires and cables of grantee.

(Ord. 1998-1, 4/13/1998, §7)

§6-108 Municipality Rights.

1.    Municipality Rules. Municipality may adopt by resolution such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations shall be reasonable, and not in conflict with the laws of the Commonwealth of Pennsylvania and the United States.

2.    Use of System by Municipality. The Municipality shall have the right, during the life of this franchise, free of charge, where aerial construction exists, of maintaining upon the poles of grantee within the Municipality wires and fixtures necessary for police communications, fire alarm and civil defense warning systems. Municipality will be responsible for installation and maintenance of any such systems. If any such systems interfere with operation or maintenance of the cable system, then grantee shall repair, move or remove equipment and shall be reimbursed by Municipality for all reasonable costs of labor and material.

3.    Inspection. The Municipality 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 insure compliance with the provisions of this Article and all other governing ordinances.

(Ord. 1998-1, 4/13/1998, §8)

§6-109 Service to Institutions.

Grantee will, upon request, provide free installation and standard service to one outlet in each municipal building; public and private school. building; and police, fire and ambulance station within municipality provided such structures are within 200 feet of existing service area.

(Ord. 1998-1, 4/13/1998, §9)

§6-110 Payment to Municipality.

1.    Any grantee holding a franchise pursuant to the terms of this Article shall pay to the Municipality for the privilege of operating its community television system under such franchise the sum of 3 percent of the annual gross cable television receipts from basic, standard, a la carte, premium and pay-per-view service monthly fees. As used in this Section, annual gross cable television receipts shall not include Pennsylvania sales tax, if any, imposed on cable television service and any fees payable to the Municipality by the cable operator for the privilege of operating its community television system within the Municipality. Termination of operation or failure to undertake operation by the grantee within one year of the granting of a franchise hereunder shall terminate liability for franchise fees under this provision.

2.    Grantee shall make payment to the Municipality of such fees on an annual basis within 30 days following the anniversary date of the grant of its franchise.

(Ord. 1998-1, 4/13/1998, §10)

§6-111 Records and Reports.

The grantee shall at all times maintain adequate records of the gross receipts from service rental income, which shall be available at all reasonable times during regular business hours to inspection by the Municipality through its duly designated agents of officers.

(Ord. 1998-1, 4/13/1998, §11)

§6-112 Terms of Franchise.

Any franchise granted hereunder shall be for the initial term of 15 years.

(Ord. 1998-1, 4/13/1998, §12)

§6-113 Franchise Applications.

All applicants for a franchise shall submit to the Municipality a statement containing the following:

A.    Name of the applicant.

B.    Address of the applicant.

C.    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 or corporation shall be submitted and shall be certified by a certified public accountant.

D.    Description of the area to be covered by the franchise.

Upon receipt of the above information, together with such other information as is requested by the Municipality, the Borough Council shall determine whether or not it is in the best interests of the Municipality to grant a franchise to the applicant.

(Ord. 1998-1, 4/13/1998, §13)

§6-114 Termination of Franchise.

1.    Upon revocation of the franchise by the Municipality, or at the end of the term of a franchise, grantee shall remove all of its equipment and other facilities from the Municipality within a reasonable time, and shall restore as nearly as possible all public and private property affected thereby to the condition it was in prior to the installation of such equipment and facilities by said company.

2.    In addition to all other rights and remedies retained by the Municipality under this Article, the Municipality shall have the right to revoke a franchise if the grantee knowingly fails to substantially comply with any material provisions of this Article or the franchise agreement. The Municipality shall not have the right to revoke a franchise if the grantee cures the material breach in accordance with paragraph .A below or if the material breach occurs without fault of the grantee or occurs as a result of circumstances beyond grantee's control. Revocation shall be by ordinance duly adopted by three-fourths of all the members of the Borough Council, in accordance with the following procedures:

A.    The Borough Council shall notify the grantee in writing of the alleged failure of compliance, setting forth the reasons for alleging that the failure is knowing, material and substantial. The grantee shall have 60 days subsequent to the receipt of the notice to correct the failure and respond to the Borough Council.

B.    Within 30 days of the receipt of the grantee's response, or if the grantee fails to respond, the Borough Council, if it concludes that a basis for revocation still exists, shall notify the grantee in writing of this conclusion.

C.    Within 30 days of the determination that a basis for revocation exists, the Borough Council shall hold a public hearing upon reasonable notice and affording due process to consider revocation. At the public hearing, the grantee shall be given an opportunity to address the grounds for revocation including the right to present evidence and examine witnesses. The Borough Council will provide a stenographic record of the public hearing. The Borough Council shall, within 21 days of the hearing, either determine not to revoke the franchise, or, upon stated grounds, revoke the franchise absolutely or conditionally. No revocation will be deemed effective, however, until either the grantee accepts in writing the ruling of the Borough Council or has exhausted all its administrative and judicial appeals and the Borough Council's ruling has been upheld by a court of last resort.

(Ord. 1998-1, 4/13/1998, §14)

§6-115 Franchise Renewal.

A franchise may be renewed by the Municipality pursuant to the procedures established in this Section and applicable Federal and State law and regulations:

A.    During the 6-month period which begins with the thirty-sixth month before the expiration of the franchise, the Municipality may on its own initiative, and shall at the request of the grantee, commence proceedings which afford the public in the franchise area appropriate notice and participation for the purposes of:

(1)    Identifying future cable-related community needs and interests.

(2)    Reviewing the performance of the grantee under the franchise during the then-current franchise term.

B.    (1)    Upon completion of such proceedings, the grantee may submit a proposal for renewal. Upon the request of the Municipality a grantee shall submit a proposal for renewal.

(2)    Subject to restrictions contained in the Cable Act, any such proposal shall contain such material as the Municipality may require, including proposals for an upgrade of the cable system.

(3)    The Municipality may establish a date by which any such proposal shall be submitted.

C.    (1)    Upon submittal of a proposal for the renewal of a franchise, the Municipality shall provide prompt public notice of such proposal and, during the 4-month period which begins on the completion of any proceedings under paragraph .A, shall either renew the franchise or issue a preliminary assessment that the franchise should not be renewed and commence at the request of the grantee or on its own initiative, an administrative proceeding to consider whether:

(a)    The grantee has substantially complied with the material terms of the existing ordinance.

(b)    The quality of the grantee's cable service, except for the mix, quality and level of programming or other services provided over the system, has been reasonable in light of community needs.

(c)    The grantee has the financial, legal and technical ability to provide the cable services, facilities and equipment as set forth in the proposal.

(d)    The proposal is reasonable to meet future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

(2)    In any administrative proceeding, the grantee and the public shall be afforded notice, and the grantee and the Municipality shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.

(3)    At the completion of an administrative proceeding, the Municipality shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and shall transmit a certified copy of such decision to the grantee. Such decision shall state the reasons therefor.

D.    Any refusal to renew a franchise or denial of a proposal for renewal shall be based only on one or more adverse findings made with respect to the factors set forth in paragraph .C(1), based upon the record of the proceeding. The Municipality may not base a refusal to renew or a denial of renewal upon factors in paragraph .C(1)(a) and .C(1)(b) unless the Municipality has given a grantee notice of and an opportunity to cure violations or problems, or has waived its right to object to, or effectively acquiesced in, such violations and problems.

E.    If a grantee's proposal for renewal has been denied by a final decision of the Municipality made pursuant to this Section, or if the grantee has been adversely affected by a failure of the Municipality to act in accordance with the procedural requirements of this Section, the grantee may seek review of such final decision or failure within 120 days of the issuance of the decision either in the District Court of the United States for any judicial district in which the cable system is located, or in any State court of general jurisdiction having jurisdiction of the parties. The court may grant appropriate relief if it finds that any action of the Municipality is not in compliance with the procedural requirements of this Section or that the denial of the renewal proposal by the Municipality is not supported by a preponderance of the evidence based on the record of the proceeding conducted under this Section.

F.    Any decision of the Municipality on a proposal for renewal shall not be considered final unless all administrative review has occurred, or the opportunity therefore has lapsed.

G.    Notwithstanding the provisions of this Section, a grantee may submit a proposal for the renewal of a franchise at any time, and the Municipality may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this Section have commenced.) The provisions of this Section shall not apply to a decision to grant or deny a proposal under this paragraph. The denial of a proposal for renewal pursuant to this paragraph shall not affect action on a renewal proposal that is submitted in accordance with paragraphs .A through .F of this Section.

H.    If the current franchise expires by its own terms before the Municipality and the grantee have reached agreement on the terms and conditions of a renewal franchise or before the completion of the formal renewal procedures set forth in this Section, the Municipality shall extend the expiration date of the current franchise until either a new franchise has been granted or the Municipality's denial has been upheld by the court of last resort.

(Ord. 1998-1, 4/13/1998, §15)