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 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 § 53-15, 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 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 and maintain the proposed broadband 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 broadband 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 broadband system
meeting the cable and telecommunications 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 broadband 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 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.
[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 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 identification of
communities in which the applicant or any of its principals have,
or have had, a cable television and/or telecommunications 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)
Demonstration of how the applicant's proposal to provide
cable or telecommunications service will reasonably meet the future
cable- and telecommunications-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, if applicable, 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 broadband service to an
area already served by an existing 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 Westtown, 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 broadband service.
(4)
Whether the applicant's proposal is reasonable to meet the future
cable- and telecommunications-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 Subsection D(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 broadband system,
including the extent to which installation or maintenance as planned
would require replacement of property or involve disruption of property,
public services and/or the public rights-of-way; the effect of granting
a franchise on the ability of the broadband system to meet the cable-
and telecommunications-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 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.
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 broadband service shall be conducted, if applicable, 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) to (c) (including, for example, if the provisions are repealed or do not otherwise apply), the provisions of § 53-12 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) to (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- and telecommunications-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 § 53-12D 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.
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) to (D) of the Cable Act, 47 U.S.C. § 546(c)(1)(A)
to (D).
F.
If renewal of a franchise is denied, the township may acquire ownership
of the 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 section
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; and
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 as set from time to time by resolution
of the Board of Supervisors.
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.
