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 § 405-15, 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 proposal ("RFP") and requesting an evaluation of that proposal pursuant to § 94-12D. 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 § 94-12C. 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/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
five-percent 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 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.
(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.
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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)(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.
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(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 Uwchlan, 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 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, 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 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 cable service shall be conducted 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)-(c) (including, for example, if the provisions are repealed), the provisions of § 94-12 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)-(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-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 § 94-12D 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 preliminary 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)-(D) of the Cable Act, 47 U.S.C. § 546(c)(1)(A)-(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 chapter 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.
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 amount
as set from time to time by resolution of the Board of Supervisors.
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.
