A.
A written application shall be filed with the township
for grant of an initial franchise; renewal of a franchise under either
the formal, or informal procedures in accordance with Section 626
of the Cable Act, 47 U.S.C. § 546; or modification of a
franchise agreement pursuant to this ordinance or a franchise agreement.
An applicant has the burden to demonstrate in its application compliance
with all requirements of this ordinance and all applicable laws.
B.
To be acceptable for filing, a signed original of
the application shall be submitted together with five copies. The
application must be accompanied by the required application filing
fee as established by resolution of the Board of Supervisors, which
fee shall not exceed $1,000, including the township's attorneys' fees
and consultants costs. The application shall further conform to any
applicable request for proposals and all required information. All
applications shall include the names and addresses of persons authorized
to act on behalf of the applicant with respect to the application.
C.
All applications accepted for filing shall be made
available by the township for public inspection.
A.
A person may apply for an initial franchise by submitting a request for issuance of a Request for Proposals (RFP) and requesting an evaluation of that proposal pursuant to Subsection D hereof. Upon receipt of a request for an RFP from an applicant seeking a franchise to provide cable service and/or telecommunications service, the township shall commence a proceeding to identify the relevant future needs and interest of the community and, upon completion of that proceeding, shall promptly issue an RFP and proposed franchise agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The applicant shall respond within the time directed by the township, providing the information and material set forth in Subsection C. hereof. The procedures, instructions and requirements set forth in the RFP shall be followed by each applicant as if set forth and required herein. The Township Manager, or his/her designee, shall be authorized to seek additional information from any applicant and to establish deadlines for the submission of that information.
C.
An RFP for the grant of an initial franchise shall
require, and an unsolicited proposal shall contain, at minimum, the
following information:
(1)
Name and address of the applicant and identification
of the ownership and control of the applicant, including the names
and addresses of the 10 largest holders of an ownership interest in
the applicant and affiliates of the applicant, and all persons with
5% or more ownership interest in the applicant and its affiliates;
the persons who control the applicant and its affiliates; all officers
and directors of the applicant and its affiliates; and any other business
affiliation and cable system ownership interest in each named person.
(2)
A demonstration of the applicant's technical ability
to construct and/or operate the proposed cable system, including identification
of key personnel.
(3)
Legal qualifications.
(a)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable system, including but
not limited to a demonstration that the applicant meets the following
criteria:
[1]
The applicant must not have submitted an application
for an initial or renewal franchise to the township which was denied
on the ground that the applicant failed to propose a cable system
meeting the cable-related needs and interests of the community, or
as to which any challenges to such franchising decision were finally
resolved adversely to the applicant, within three years preceding
the submission of the application.
[2]
The applicant must not have had any franchise
validly revoked by any franchising authority within three years preceding
the submission of the application.
[3]
The applicant must have the necessary authority
under Pennsylvania law to provide cable service and/or telecommunications
service, as appropriate.
[4]
A franchise will not be issued to an applicant
that may not hold the franchise as a matter of law. An applicant must
have, or show that it is qualified to obtain, the necessary federal
licenses or waivers required to operate the cable system proposed.
[5]
The township may, in its sole discretion, refuse
to issue a franchise if, at any time during the 10 years preceding
the submission of the application, the applicant was convicted of
any act or omission of such character that the applicant cannot be
relied upon to deal truthfully with the township and the subscribers
of the cable system, or to substantially comply with its lawful obligations
under applicable law, including obligations under consumer protection
laws and laws prohibiting anticompetitive acts, fraud, racketeering
or other similar conduct.
[6]
An applicant shall not be issued a franchise
if it files materially misleading information in response to an RFP
issued by the township or intentionally withholds information that
the applicant lawfully is required to provide.
[7]
An applicant shall not be issued a franchise
if an elected official of the township holds a controlling interest
in the applicant or an affiliate of the applicant.
(b)
Notwithstanding the foregoing, the township shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under Subsection C(3)(a)[2] or [5] by virtue of particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom, the lack of involvement of the applicant's principals or the remoteness of the matter from the operation of cable systems.
(4)
A statement prepared by a certified public accountant
regarding the applicant's financial ability to complete the construction
and operation of the cable system proposed.
(5)
A description of the applicant's prior experience
in cable system ownership, construction and operation, and, if cable
service is proposed, identification of communities in which the applicant
or any of its principals have or have had a cable television franchise
or license or any interest therein.
(6)
Identification of the area of the township to be served
by the proposed cable system, including a description of the proposed
franchise area's boundaries.
(7)
A detailed description of the physical facilities
proposed, including channel capacity, technical design, performance
characteristics, head end and access facilities.
(8)
Where applicable a description of the construction
of the proposed cable system, including an estimate of plant mileage
and its location, the proposed construction schedule, a description,
where appropriate, of how services will be converted from existing
facilities to new facilities, and information on the availability
of space in conduits, including, where appropriate, an estimate of
the cost of any necessary rearrangement of existing facilities.
(9)
The proposed rate structure, including projected charges
for each service tier, installation, converters and other equipment
or services, as applicable.
(10)
If cable service is proposed, demonstration
of how the applicant's proposal to provide cable service will reasonably
meet the future cable-related needs and interests of the community,
including descriptions of how the proposal will meet the needs described
in any recent community needs assessment conducted by or for the township,
and how the proposal will provide adequate public, educational and
governmental access channel capacity, facilities or financial support
to meet the community's needs and interests.
(11)
Pro forma financial projections for the proposed
franchise term, including a statement of projected income, and a schedule
of planned capital additions, with all significant assumptions explained
in notes or supporting schedules.
(12)
If an applicant proposes to provide Cable Service
to an area already served by an existing cable service franchisee,
the identification of the area where the overbuild would occur, the
potential subscriber density in the area that would encompass the
overbuild and the ability of the streets to accommodate an additional
cable system.
(13)
Any other information as may be reasonably necessary
to demonstrate compliance with the requirements of this ordinance.
(14)
Information that the township may request of
the applicant that is relevant to the township's consideration of
the application.
(15)
An affidavit or declaration of the applicant
or authorized officer certifying the truth and accuracy of the information
in the application, acknowledging the enforceability of application
commitments and certifying that the proposal meets all federal and
state law requirements.
D.
In evaluating an application for an initial franchise
seeking authority to provide cable service and/or telecommunications
service, the township shall consider, among other things, the following
factors:
(1)
The extent to which the applicant has substantially
complied with the applicable law and the material terms of any existing
franchise for the township.
(2)
Whether the quality of the applicant's service under
an existing franchise in West Goshen Township, including signal quality,
response to customer complaints, billing practices, and the like,
has been reasonable in light of the needs and interests of the communities
served.
(3)
Whether the applicant has the financial, technical
and legal qualifications to provide cable service.
(4)
Whether the applicant's proposal is reasonable to
meet the future cable-related needs and interests of the community,
taking into account the cost of meeting such needs and interests.
(5)
Whether, to the extent not considered as part of § A87-5D(4) of this article, the applicant will provide adequate public, educational, and governmental access channel capacity, facilities or financial support.
(6)
Whether issuance of a franchise is warranted in the
public interest considering the immediate and future effect on the
public rights-of-way and private property which would be used by the
cable system, including the extent to which installation or maintenance
as planned would require replacement of property or involve disruption
of property, public services, the public rights-of-way; the effect
of granting a franchise on the ability of the cable system to meet
the cable-related needs and interests of the community; and the comparative
superiority or inferiority of competing proposals.
(7)
Whether the applicant or an affiliate of the applicant
owns or controls any other cable system in the township, or whether
grant of the application may eliminate or reduce competition in the
delivery of cable service or telecommunications service in the township.
E.
If the township finds that it is in the public interest
to issue a franchise considering the factors set forth above, it shall
issue a franchise, subject to the applicant's entry into an appropriate
franchise agreement. If the township denies a franchise, it shall
issue a written decision explaining why the franchise was denied.
Prior to deciding whether to issue or not to issue a franchise, the
township may hold one or more public hearings or implement other procedures
under which comments from the public on an applicant's proposal may
be received. The township also may grant or deny a request for a franchise
based on its review of an application without further proceedings
and may reject any application which is incomplete or fails to respond
to an RFP. This ordinance is not intended and shall not be interpreted
to grant any applicant or existing franchisee standing to challenge
the issuance of a franchise to another.
F.
If the township grants a franchise subject to the
applicant's entry into a franchise agreement, the township and the
franchisee shall agree on the terms of a franchise agreement within
30 calendar days from the date of the township resolution granting
the franchise. This period may be extended for good cause by the township.
If agreement is not reached with the township within 30 calendar days
from the date of the township resolution granting the franchise, or
if the period is not extended by the township, the franchise will
be null and void without further action by the township. The township
shall approve or disapprove the proposed agreement by resolution,
or may direct that it be subject to further negotiation.
Renewal franchise authorizing the provision of the cable service shall be conducted in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. § 546. If neither the franchisee nor the township activates or can activate the renewal process set forth in 47 U.S.C. § 546(a)-(c) (including, for example, if the provisions are repealed), the provisions of § A87-5 of this article shall apply and a renewal request shall be treated the same as a request for an initial franchise. The following additional requirements shall apply to all applicants seeking renewal after the effective date of this ordinance where the procedures set forth in 47 U.S.C. § 546(a)-(c) are activated:
A.
Within six months after receipt of notice from a franchisee
that has invoked the renewal procedures of Section 626 of the Cable
Act, the township shall undertake a proceeding, including notice to
and opportunity for participation by, the public, for the purpose
of identifying future cable-related community needs and interests,
including the costs of meeting such needs and interests, and reviewing
compliance by the franchisee with the then current franchise. Such
proceeding shall be completed within 12 months from the date begun.
The township shall submit a copy of its findings, if any, in writing
to the franchisee within said twelve-month period.
B.
Upon the expiration of the twelve-month period set forth in Subsection A above, the franchisee may submit to the township a proposal for renewal.
C.
Upon receipt of the renewal application, the township
shall publish a notice of its receipt once in a newspaper of general
circulation within the township and make copies available for review
by the public.
D.
Within four months of the date it receives the proposal for renewal, and based on the standards set forth in § A87-5D of this article, the township will either:
(1)
Pass a resolution agreeing to renew the franchise,
subject to the negotiation of a franchise agreement satisfactory to
the township and the franchisee; or
(2)
Pass a resolution that makes a preliminary assessment
that the franchise should not be renewed;
(3)
Provided that, if the township and a franchisee cannot
reach a franchise agreement within four months after the proposal
is received, such passage of time shall constitute and be deemed a
preliminary assessment that the franchise should not be renewed.
E.
If a preliminary assessment is made that a franchise
should not be renewed, at the request of the franchisee, the township
will commence a proceeding in accordance with Section 626(c) of the
Cable Act, 47 U.S.C. § 546(c) to address the issues set
forth in Section 626(c)(1)(A)-(D) of the Cable Act, 47 U.S.C. § 546(c)(1)(A)-(d).
F.
If renewal of a franchise is denied, the township
may acquire ownership of the cable system or effect a transfer of
ownership of the system to another person upon approval of the Board.
G.
If renewal of a franchise is denied and the township
does not purchase the cable system or approve or effect a transfer
of the cable system to another person, the township may require the
former franchisee to remove its facilities and equipment at the former
franchisee's expense. If the former franchisee fails to do so within
a reasonable period of time, the township may have the removal done
at the former franchisee's and/or surety's expense.
H.
To the extent that any of the substantive provisions
of this ordinance are inconsistent with Section 626 of the Cable Act,
47 U.S.C. § 546, they shall not apply.
An application for modification of a franchise
agreement shall include, at minimum, the following information:
A.
The specific modification requested.
B.
The justification for the requested modification,
including the impact of the requested modification on subscribers
and others, and the financial impact on the applicant if the modification
is approved or disapproved, demonstrated through inter alia, submission
of financial pro formas.
C.
A statement whether the modification is sought pursuant
to Section 625 of the Cable Act, 47 U.S.C. § 545 and, if
so, a demonstration that the requested modification meets the standards
set forth in 47 U.S.C. § 545.
D.
Any other information that the applicant believes
is necessary for the township to make an informed determination on
the application for modification.
E.
An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information in the
application and certifying that the application is consistent with
all federal and state law requirements.
To be acceptable for filing, an application
for the grant, modification or renewal of a franchise submitted after
the effective date of this ordinance shall be accompanied by a filing
fee as established by resolution of Board of Supervisors, which fee
shall not exceed $1,000, including the township's attorneys' fees
and consultants' costs.
A franchise to construct, operate and maintain
a cable system and/or cable service shall be granted only pursuant
to and in compliance with the terms and conditions of this ordinance.
Such terms and conditions shall be subordinate to all applicable provisions
of state and federal laws, rules and regulations. If the township
approves the RFP and votes to enter into a franchise agreement with
the applicant, the applicant shall be bound by all future ordinances
and regulations of the township, including any ordinances and regulations
governing cable communications, except to the extent that any such
future ordinances or regulations increase or expand the franchisee's
obligations under the franchise agreement.
Upon acceptance of the franchise, a franchisee
shall be bound by all of the terms and conditions of this ordinance
and all future revisions of this ordinance and any other ordinances
or regulations enacted subsequent hereto pertaining to cable communications
except to the extent that any such future ordinances or regulations
increase or expand the franchisee's obligations under the franchise
agreement. Franchisee shall provide all services and offerings specifically
set forth herein to provide cable service within the franchisee's
franchise area in the township.
A.
For the purpose of constructing, operating and maintaining
a cable system in the township, a franchisee may erect, install, construct,
repair, replace, relocate, reconstruct and retain in, on, over, under,
upon, across and along the streets within the township such lines,
cable, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment
as are necessary and appurtenant to the operation of the cable system.
B.
The franchisee shall construct and maintain the cable
system so as not to interfere with other uses of the streets. The
franchisee shall endeavor to make use of existing poles and other
facilities available to the franchisee where feasible. The franchisee
shall notify the township in writing within at least 10 days and shall
publicize proposed construction work prior to commencement of that
work.
C.
Notwithstanding the above grant to use of streets,
no streets shall be used by any franchisee if the township determines
that such use is inconsistent with the terms, conditions or provisions
by which such street was created or dedicated or is presently used.
A.
A franchise granted pursuant to this ordinance shall
be nonexclusive. By entering into a franchise agreement with the township
under this ordinance, the franchisee automatically acknowledges the
Board's right to grant additional franchises upon such terms and conditions
as the Board deems appropriate; provided, however, that if the township
grants an additional franchise for construction and operation of a
cable system or open video system (OVS) to another franchisee, the
township may not impose material obligations, as that term is defined
herein, which are more favorable or less burdensome than those in
any existing franchise agreement, or impair any existing franchisee's
ability to perform its commitments under existing franchise agreements.
For purposes of this section, material obligations are limited to
the following:
B.
In any renewal of an existing franchise, the township,
should it seek to impose increased obligations upon the franchisee,
must take into account any additional franchise(s) previously granted
and find that the proposed increased obligations in the renewal, if
they are more burdensome and less favorable than those contained in
the additional franchise(s), are reasonable under Section 626 of the
Cable Act, taking into account the costs and burdens of meeting such
noncomparable obligations.
A franchise shall commence upon written acceptance
by the franchisee as required by this ordinance and shall remain in
full force and effect for a period agreed to by the township and franchisee
in a franchise agreement; provided, however, that such term shall
not be less than five years.
A franchise granted under this ordinance shall
include such portions within the territorial borders of the township
as the Board shall approve. In the event of annexation by the township,
the franchisee shall use every reasonable effort in its best business
judgment to provide service to the new territory unless such territory
is already being serviced by another franchise.
The franchisee's rights are subject to the police
powers of the township to adopt and enforce ordinances necessary to
the health, safety, and welfare of the public. The franchisee shall
comply with all applicable general laws and ordinances enacted by
the township pursuant to that power.
The township has the right to install and maintain,
free of charge, upon the poles and within the underground pipes and
conduits of the franchisee, any wires and fixtures required by the
township to the extent that such installation and maintenance does
not interfere with the existing and future operations of the franchisee
and provided that such wires and fixtures required by the township
are not used to deliver cable service to subscribers with the township.
All notices, reports or demands required to
be given by either the township or a franchisee under this ordinance
in connection with any franchise granted by the Board pursuant hereto
shall be deemed to be given when delivered in writing either personally
to the person designated by the franchisee or when five days have
elapsed after it is deposited in the United States mail in a sealed
envelope, with registered or certified mail postage prepaid thereon,
or on the next business day if sent by express mail or overnight air
courier addressed to the parties to whom the notice is being given,
as follows:
|
If to Township:
|
Township of West Goshen
Attention: Township Manager
1025 Paoli Pike
West Chester, Pennsylvania 19380
|
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If the franchisee - Pursuant to franchise agreement.
Such addresses may be changed by the township
or the franchisee upon notice to the other party given as provided
in this section.
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A transfer of franchise granted pursuant to
this ordinance shall not be voluntarily transferred to any other person,
firm, company, corporation or entity other than to the principal parents
of the franchisee, a parent corporation, a subsidiary or affiliate
corporation of a parent company of subsidiary or affiliate corporation
of the franchise or any other firm or entity owned by the franchisee
without the prior approval of the township as to the financial and
technical ability of the transferee to operate the system. Such permission
shall not be unreasonably withheld. At least 60 days prior to the
proposed transfer, the franchisee shall file with the township a request
for transfer and provide the information required by FCC Form 394.
If the township has not taken action on the franchisee's request for
transfer within 120 days after receipt of such notice, consent by
the township shall be deemed to have been given.
