Township of Uwchlan, PA Article III Grant of Franchise

§ 94-4 Grant of franchises.

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.

§ 94-5 Franchise required.

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.

§ 94-6 Franchise characteristics.

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 cable 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 the 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.

§ 94-7 Franchisee subject to other laws, police power.

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.

§ 94-8 Interpretation of franchise terms.

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.

§ 94-9 Operation of a broadband system without a franchise.

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.

§ 94-10 Right of condemnation reserved.

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 a franchisee.