ADMINISTRATION
ORDINANCE NO. 14531
FILE OF CITY COUNCIL
BILL NO. 66 - 2007
JULY 18, 2007
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF ALLENTOWN, LEHIGH COUNTY, PENNSYLVANIA, GRANTING TO RCN TELECOM SERVICES, INC. A NON-EXCLUSIVE FRANCHISE TO ERECT, INSTALL, MAINTAIN AND OPERATE CABLE SERVICE IN, UNDER, OVER, ALONG, ACROSS AND UPON THE STREETS, SIDEWALKS, ALLEYS, BRIDGES, ROADS, HIGHWAYS AND OTHER PUBLIC PLACES IN THE CITY OF ALLENTOWN AND SUBSEQUENT ANNEXATIONS THERETO INCLUDING IN CONNECTION THEREWITH THE RIGHT AND PERMISSION TO ERECT, INSTALL, AND MAINTAIN POLES AND TO INSTALL, ATTACH AND MAINTAIN WIRES, CABLES, APPLIANCES AND OTHER FACILITIES TO SUCH POLES AND TO EXISTING UTILITY POLES FOR THE PURPOSE OF TRANSMISSION AND DISTRIBUTION OF CABLE SERVICE; TO PROVIDE RECEPTION SERVICE FOR THE SAME TO THE MEMBERS OF THE PUBLIC DESIRING SUCH SERVICE IN THE CITY OF ALLENTOWN, AND FOR OTHER PURPOSES FOR A PERIOD OF YEARS, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE SAID FRANCHISE; PROVIDING FOR CITY REGULATION AND USE OF THE SYSTEM AND PROVIDING PENALTIES FOR VIOLATIONS.
WHEREAS, the City of Allentown, Lehigh County, Pennsylvania, has considered the adoption of a cable television franchise agreement; and,
WHEREAS, the City of Allentown is a duly organized city of the third class in the Commonwealth of Pennsylvania; and,
WHEREAS, the City of Allentown is authorized to grant one or more nonexclusive, revocable, franchises to construct, operate, and maintain within the City of Allentown a system for providing “Cable Service”.
NOW THEREFORE BE IT ORDAINED, the City Council of the City of Allentown hereby enacts into ordinance this Cable Service Franchise Agreement between the City of Allentown and RCN Telecom Services, Inc. as herein provided.
CABLE SERVICE FRANCHISE AGREEMENT
CITY OF ALLENTOWN, LEHIGH COUNTY, PENNSYLVANIA
THIS FRANCHISE AGREEMENT BY AND BETWEEN CITY OF ALLENTOWN, LEHIGH COUNTY, COMMONWEALTH OF PENNSYLVANIA (hereinafter "Franchise Authority", "Franchising Authority" or "City") and RCN TELECOM SERVICES, INC.("Grantee") IS AUTHORIZED BY ORDINANCE NO. , ORDAINED AND ENACTED ON THE DAY OF , 2007.
RECITALS
WHEREAS, the Franchising Authority has determined that the Grantee has the financial, legal, and technical ability which is reasonably sufficient to provide services, facilities, and equipment necessary to meet the future cable-related needs of the community;
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, and it being the intention of the parties to be legally bound hereby, the Franchising Authority and Grantee agree as follows:
BE IT ENACTED and ORDAINED by the City Council of the CITY OF ALLENTOWN and it is hereby enacted and ordained:
SECTION 1
DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words and their derivation shall have meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and the words in a singular number include the plural number. The word "shall" is always mandatory and not merely directory.
A. "Affiliate" means a Person or entity with (i) a direct or indirect ownership interest in the subject entity of five (5%) percent or more or controls such interest, including forms of ownership such as general, limited, or other partnership interests, direct ownership interests, limited liability companies and other forms of business organizations and entities but, not including corporations, or (ii) a stock interest in the subject entity where the subject entity is a corporation and such stockholder or its nominee is an officer or director of the Grantee or who directly or indirectly owns or controls five (5%) percent or more of the outstanding stock, whether voting or non-voting.
B. "Basic Service" means the separately available level of Cable Service, which at a minimum shall include (i) the retransmission of local broadcast television signals, required to be carried under applicable federal law and for which the Grantee has secured any necessary consents for carriage (ii) any public, educational, and governmental access programming required by the Franchise, (iii) any signal of any television broadcast station that is provided by the cable operator to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station.
C. "Cable Act" means the Communications Act of 1934, as now or hereafter amended.
D. "Cable Operator" means any person or group of persons (a) who provides Cable Service over a Cable System directly or through one or more Affiliates; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System.
E. "Cable Service" means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
F. "Cable System" means a system for providing Cable Service of antennas, cables, wires, lines, fiber optic cable, towers, waveguides or other conductors, converters, equipment or facilities, used for producing, receiving, amplifying, storing, processing, or distributing audio, video, data or other forms of signals to and from Subscribers.
G. "City" is the City of Allentown, Lehigh County, Pennsylvania.
H. "Company" or "Grantee" shall be RCN Telecom Services, Inc., or anyone who succeeds it in accordance with the provisions of this Ordinance.
I. "Effective Date" shall mean the date this Agreement becomes binding on all parties pursuant to Section 24(D).
J. "FCC" means Federal Communications Commission, or successor governmental entity thereto.
K. "Franchise" means the initial authorization or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the Cable System for the purpose of offering Cable Service to Subscribers.
L. "Franchising Authority" means the City of Allentown, Lehigh County, Commonwealth of Pennsylvania, or the lawful successor, transferee, or assignee thereof.
M. "Gross Revenue" means all revenue received from all sources derived from the operation of the Cable System by the Cable Operator and its Affiliates within the boundaries of the Service Area from Cable Service including, but not limited to, subscription fees, additional set fees, converter fees, remote fees, late fees, installation fees, sales commissions, pay-per-view fees, cable-related publications, home shopping, advertising, sales or other commissions, launch fees, channel leasing payments, and revenue received from the sale of time or programming on leased channels, the sale of commercial time or programs, and the revenue received from provision of any lawful Cable Service. Excluded are the following:
(i) the revenue of any Affiliate including, without limitation, a supplier of programming to the Grantee, but such exclusion shall apply only to the extent that said revenue is also included in the Gross Revenue of the Grantee;
(ii) amounts collected by the Grantee from subscribers on behalf of leased access channel programmers, but such exclusion shall apply only to the extent said amounts are passed on by the Grantee to said programmers.
(iii) the revenue of the Grantee or any Affiliate from the operation of 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 a Cable System (other than for purposes of Section 621(c) of the Cable Act) to the extent such facility is used for the operation of Cable Service.
Gross Revenues from advertising received by Grantee or by any Affiliate shall be prorated based upon the proportion of the number of City subscribers as compared to the number of total subscribers to which such advertising is delivered by Grantee and its Affiliates. “Gross Revenue” shall include amounts earned in any period, regardless of: (i) whether the amounts are paid in cash, in trade, or by means of some other benefit to Grantee or its Affiliates; (ii) whether the goods or services with which the revenue is associated are provided at cost or the revenue amount can be matched against an equivalent expenditure; (iii) how the amounts are characterized, separately identified, or accounted as being for goods, services or fees to be paid to the Cable Operator or government entities; and/or (iv) whether or how the amounts are initially recorded by Grantee or its Affiliates. “Gross Revenue” shall not be a net of: (a) any operating expense; (b) any accrual, including, without limitation, any accrual for sales or agency commissions; or (c) any other expenditure, regardless of whether such expense, accrual or expenditure reflects a cash payment.
N. "Person" means an individual, partnership, association, joint stock company, trust, or corporation.
O. "Public Way" means the surface of, and the space above and below, any public street, highway, turnpike, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public rightofway, including public utility easements, dedicated utility strips, or rightsofway dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Service Area which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System. Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the Service Area for the purpose of public travel or for utility or public service use dedicated for compatible uses, and shall include other easements or rightsofway as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to use thereof for the purposes of installing, operating, maintaining or repairing such Cable System over poles, wires, cables, conductors, ducts, conduits, pedestals, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System.
P. "Service Area" means the present municipal boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means.
Q. "State-of-the-Art" shall mean capabilities that can be:
(1) readily implemented from two (2) or more sources of supply;
(2) demonstrated to be commonly available in Pennsylvania, Delaware and/or New Jersey, with the exception of the New York “Metropolitan Area”, as that term is defined at the Effective Date of this Agreement by the United States Office of Management and Budget, under actual operating conditions (i.e., other than test or experimentation);
The term "State-of-the-Art" includes facilities and equipment, but does not include (i) specific services or studio devices associated with public, educational or governmental access; or, (ii) subscriber equipment or transmission technology.
R. "Street, Highway" shall mean all public rights of way and public grounds or waters within or belonging to the City, including but not limited to streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, docks, bulkheads, wharves, piers, and alleys.
S. "System" shall mean the Cable System constructed, operated and maintained by the Grantee in the City.
T. "Subscriber" means a person or user of the Cable System who lawfully receives or has received Cable Services or other service therefrom with Grantee's express permission within the Service Area.
U. "User" shall mean a person or organization utilizing a System channel for purposes of production and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity.
SECTION 2
GRANT OF NON-EXCLUSIVE FRANCHISE
Grantee hereby acknowledges and accepts the legal right of the City to issue this Franchise. Subject to the terms and conditions of this Franchise, the City hereby grants to the Grantee the right to use and occupy the Public Ways for the purpose of providing Cable Service. This Franchise shall constitute a right and an obligation to provide Cable Service. This Franchise shall grant no authority for the Grantee to use and occupy the Public Ways for any purpose other than provision of Cable Service. No privilege or power of eminent domain is bestowed by this grant; nor is such a privilege or power bestowed by this Franchise. This Franchise does not confer any rights other than as expressly provided herein.
SECTION 3
TERM OF FRANCHISE
Unless terminated sooner in accordance with other provisions of this Agreement, the Franchise granted pursuant to this Agreement shall commence on the effective date of the Franchise as set forth in Section 24(D) and shall automatically expire on midnight ten (10) years after the Effective Date.
SECTION 4
FRANCHISE TERRITORY
The franchise granted herein is for the present territorial limits of the City and for any areas henceforth added thereto during the term of this franchise.
SECTION 5
CONDITIONS OF OCCUPANCY OF PUBLIC WAYS
5.1 USE OF STREETS, POLE ATTACHMENTS. (1) The Grantee shall first obtain the approval of the appropriate City officials prior to commencing construction in the streets, alleys, public grounds or places of the City. The Grantee shall give the appropriate City officials written notice of proposed construction at least ten (10) days prior to such construction.
(2) The Grantee's rights and privileges shall be subordinated to any prior lawful use or occupancy of the streets or other public property and shall not be so used as to interfere with existing improvements or with new improvements the City may deem proper to make, or as to hinder or obstruct the free use of the streets, alleys, bridges, or other public property. In the event any equipment or facilities of Grantee shall interfere with any such improvement existing or intended to be made by the City, Grantee shall, upon notice from the City, forthwith relocate said equipment and facilities at Grantee's expense so as to eliminate said interference.
(3) The Grantee shall not open or disturb the surface of any street, sidewalk, driveway, or public place for any purpose without first having obtained a permit to do so.
(4) Nothing in this Agreement or any franchise granted hereunder, shall authorize the Grantee to erect and maintain for the City new poles where existing poles are servicing the area. The Grantee shall obtain permission from the appropriate City officials before erecting any new poles or underground conduit where none exists at the time the Grantee seeks to install its System.
(5) In case of disturbance of any streets, sidewalk, alley, public way, or paved area, Grantee shall, at its own cost and expense and in a manner approved by the City Engineer, replace and restore such street, sidewalk, alley, public way, or paved area to the same or similar condition as existed prior to the disturbance.