A.
A written application shall be filed with the Township
for:
(1)
Grant of an initial franchise.
(2)
Renewal of a franchise under either the formal or informal
procedures in accordance with § 626 of the Cable Act, 47 U.S.C.
§ 546.
(3)
Modification of a franchise agreement pursuant to this
chapter or a franchise agreement. An applicant has the burden to demonstrate
in its application compliance with all requirements of this chapter 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 set forth in § 123-15, conform to any applicable request for proposals and contain 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. 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 interests 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. 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 a 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 broadband system ownership interest
of each named person.
(2)
A demonstration of the applicant's technical ability
to construct and/or operate the proposed broadband system, including identification
of key personnel.
(3)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed broadband system including, but not
limited to, a demonstration that the applicant meets the following criteria:
(a)
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 broadband system meeting the
cable-related needs and interest of the community or as to which any challengers
to such franchising decision were finally resolved adversely to the applicant,
within three years preceding the submission of the application.
(b)
The applicant must not have had any franchise validly
revoked by any franchising authority within three years preceding the submission
of the application.
(c)
The applicant must have the necessary authority under
Pennsylvania law to provide cable service and/or telecommunications service,
as appropriate.
(d)
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 broadband system proposed.
(e)
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, 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 broadband 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.
(f)
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.
(g)
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. 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 Subsections C(3)(b) or (e), by virtue of the 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 broadband systems.
(4)
A statement prepared by a certified public accountant
regarding the applicant's financial ability to complete the construction and
operation of the broadband system proposed.
(5)
A description of the applicant's prior experience in
broadband 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 broadband 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,
headend and access facilities.
(8)
Where applicable, a description of the construction of
the proposed broadband 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 broadband system.
(13)
Any other information as may be reasonably necessary
to demonstrate compliance with the requirements of this chapter.
(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 Whiteland, 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 in Subsection D(4), the applicant will provide adequate public, educational and governmental access channel capacity, facilities or financial support.
(6)
Whether the 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 broadband 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 broadband 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 broadband system in the Township or whether grant
of the application may eliminate or reduce competition in the delivery of
cable serve or telecommunications service in the Township.
E.
If the Township 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.
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 cable service shall be conducted in a manner consistent with § 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) through (c) (including, for example, if the provisions are repealed), the provisions of § 123-12 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 chapter where the procedures set forth in 47 U.S.C. § 546(a) through (c) are activated:
A.
Within six months after receipt of notice from a franchisee
that has invoked the renewal procedures of § 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:
(1)
Identifying future cable-related community needs and
interests, including the costs of meeting such needs and interests.
(2)
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 § 123-12D of this chapter, 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.
(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,
then the resolution agreeing to renewal shall be deemed a resolution preliminarily
assessing 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 § 626(c) of the Cable Act,
47 U.S.C. § 546(c), to address the issues set forth in § 626(c)(1)(A)
through (D) of the Cable Act, 47 U.S.C. § 546(c)(1)(A) through (D).
F.
If renewal of a franchise is denied, the Township may
acquire ownership of broadband system or effect a transfer of ownership of
the system to another person upon approval of the Board. Any such acquisition
or transfer shall be at fair market value, determined on the basis of the
broadband system valued as a going concern but with no value allocated to
the franchise itself.
G.
If renewal of a franchise is denied and the Township
does not purchase the broadband system or approve or effect a transfer of
the broadband 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 chapter are inconsistent with § 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 § 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.
A.
To be acceptable for filing, an application for the grant
or modification of a franchise submitted after the effective date of this
chapter shall be accompanied by a filing fee in the following amount, as appropriate:
B.
Reasonable increases to the foregoing amounts may be
imposed, from time to time, as the Board may establish by resolution.
An applicant shall be notified of any public hearing held in connection
with the evaluation of its proposal and shall be given an opportunity to be
heard.