A.
A written application shall be filed with the township
for: a grant of an initial franchise; a 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 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 10 copies. The application must be accompanied by the required application filing fee as set forth in § 18-15, 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 § 18-12D. Upon receipt of a request for an RFP, the township shall commence a proceeding to identify the future cable-related 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 § 18-12C. 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 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 of 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)
Demonstration of 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 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 cable television
franchise validly revoked by any township within three years preceding
the submission of the application.
[3]
The applicant must have the necessary authority
under Pennsylvania law to operate a cable system.
[4]
A franchise will not be issued to an applicant
that may not hold the franchise as a matter of federal law. An applicant
must have or show that it is qualified to obtain the necessary federal
licenses or waivers required to operate the system proposed.
[5]
An applicant shall not be issued 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 § 18-12C(3)(a)[2] or § 18-12C(3)(a)[5] 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 cable television 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 identification
of communities in which the applicant or any of its principals have
or have had a cable 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 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.
(10)
A demonstration of how the applicant's proposal
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 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 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 reasonably
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 a franchise, 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
cable franchise for the township.
(2)
Whether the quality of the applicant's service under
an existing franchise in the 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 § 18-12D(4), 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 or use of the public rights-of-way and/or
the effect of granting a franchise on the ability of cable to meet
the cable-related needs and interests of the community.
(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 eliminates or reduces competition in the
delivery of cable 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 will 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 chapter 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 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 shall be conducted in a manner consistent
with Section 626 of the Cable Act, 47 U.S.C. § 546. 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.
Upon completion of the review and evaluation process
set forth in Section 626(a)(1) and (2) of the Cable Act, 47 U.S.C.
§ 546(a)(1) and (2), should that process be invoked, a cable
operator seeking renewal of a franchise may, on its own initiative,
submit an informal proposal or, at the request of a township, in accordance
with notice from the township, submit a proposal for renewal.
B.
Upon receipt of the formal renewal application, the
township shall publish notice of its receipt and make copies available
for review by the public.
C.
Within four months of the date it receives the formal proposal for renewal and based on the standards set forth in § 18-12D of this chapter, the township will either pass a resolution agreeing to renew the franchise, subject to the negotiation of a franchise agreement satisfactory to the township and the franchisee, or pass a resolution that makes a preliminary assessment that the franchise should not be renewed, 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.
D.
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) through (D) of the Cable Act, 47 U.S.C.
§ 546(c)(1)(A) through (D).
E.
If renewal of a franchise is denied, 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 performed at the former franchisee's and/or surety's expense
or, in the alternative, shall have the right to sell the same in place.
F.
To the extent that any of the provisions of this chapter
are substantially inconsistent with Section 626 of the Cable Act,
47 U.S.C. § 546, they shall not apply.
G.
Notwithstanding the foregoing, the township shall
have the right, but not the obligation, to informally renew a franchise.
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
submitted after the effective date of this chapter shall be accompanied
by a filing fee in the following amount (NOTE: These fees may be increased
in an amount equal to the increase in the consumer price index for
the Philadelphia metropolitan area using the year of this chapter
as the base year.), as appropriate:
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.
