The township may grant one or more franchises, and each such
franchise shall be awarded in accordance with and subject to the provisions
of this chapter. This chapter may be amended from time to time, and
in no event shall this chapter be considered a contract between the
township and a franchisee such that the township would be prohibited
from amending any provision hereof. No such amendment shall be applied
retroactively to materially impair preexisting contractual agreements
entered into between the township and a franchisee.
No person may construct or operate a broadband system over,
on or under public streets in the township without a franchise granted
by the township unless otherwise authorized by law, and no person
may be granted a franchise without having entered into a franchise
agreement with the township pursuant to this chapter.
A.
A franchise authorizes use of township streets for installing cables,
wires, lines, optical fiber, underground conduit and other facilities
to provide cable service or telecommunications service within a franchise
area, but does not expressly or implicitly authorize the franchisee
to provide service to, or install cables, wires, lines, underground
conduit or any other equipment or facilities on private property without
owner consent [except for use of compatible easements pursuant to
Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2)], or
to use publicly or privately owned conduits without a separate agreement
with the owners.
B.
The term of a franchise shall not exceed 15 years and may not exceed
five years unless the franchise agreement contains clear and enforceable
provisions for regulating upgrades, improving any customer service
requirements, reevaluating the provision of additional access channels,
reevaluating interconnection of the system with other broadband systems
and making such other requirements as may be necessary in light of
advancements in technology, at minimum intervals of not greater than
every five years.
C.
A franchise is nonexclusive and will not explicitly or implicitly
preclude the issuance of other franchises to operate broadband systems
within the township, or affect the township's right to authorize
use of township streets by other persons to operate broadband systems
or for other purposes as it determines appropriate.
D.
Once a franchise agreement has been accepted and executed by the
township and a franchisee, such franchise agreement shall constitute
a contract between the franchisee and the township, and the terms,
conditions, and provisions of such franchise agreement, subject to
this chapter and all other duly enacted and applicable laws, shall
define the rights and obligations of the franchisee and the township
relating to the franchise.
E.
All privileges prescribed by a franchise shall be subordinate to
any prior lawful occupancy of the streets, and the township reserves
the right to reasonably designate where a franchisee's facilities
are to be placed within the streets.
F.
A franchise shall be a privilege that is in the public trust and
personal to the original franchisee. No transfer of a franchise shall
occur without the prior consent of the township and unless application
is made by the franchisee and township approval obtained, pursuant
to this chapter and the franchise agreement.
G.
A franchise holder may not enter into or enforce any exclusive contract
with a subscriber (including a building owner) as a condition of providing
or continuing service.
A.
A franchisee shall at all times be subject to and shall comply with
all applicable federal, state and township laws. A franchisee shall
at all times be subject to all lawful exercise of the police power
of the township, including all rights the township may have under
47 U.S.C. § 552.
B.
No course of dealing between a franchisee and the township, nor any
delay on the part of the township in exercising any rights hereunder,
shall operate as a waiver of any such rights of the township or acquiescence
in the actions of the franchisee in contravention of rights except
to the extent expressly waived by the township or expressly provided
for in a franchise agreement, or except as provided in 47 U.S.C. § 546(d).
C.
The township shall have the maximum plenary authority to regulate
broadband systems, franchisees and franchises as may now or hereafter
be lawfully permissible; except where rights are expressly waived
by a franchise agreement they are reserved, whether expressly enumerated
or not.
A.
The express terms of this chapter will prevail over conflicting or
inconsistent provisions in a franchise agreement unless such franchise
agreement expresses an explicit intent to waive a requirement of this
chapter.
B.
The provisions of a franchise agreement will be liberally construed
in favor of the township in order to effectuate the purposes and objectives
of this chapter and the franchise agreement and to promote the public
interest.
C.
Except as to matters that are governed solely by federal law or regulation,
a franchise agreement will be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
After the effective date of this chapter, any person who occupies
township streets or public rights-of-way for the purpose of operating
or constructing a broadband system and who does not hold a valid franchise
from the township shall be subject to all provisions of this chapter,
including but not limited to its provisions regarding construction
and technical standards and franchise fees. In its discretion, the
township at any time may require such person to enter into a franchise
agreement within 30 days of receipt of a written notice by the township
that a franchise agreement is required; and/or require such person
to remove its property and restore the area to a condition satisfactory
to the township within such time period; and/or remove the property
itself and restore the area to a satisfactory condition and charge
the person the costs therefor. In no event shall a franchise be created
unless it is issued by action of the township and subject to a franchise
agreement.
Nothing in this chapter or the franchise shall limit any right
the township may have to acquire by eminent domain or otherwise any
property of the franchisee.