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 C. Upon receipt of a request for an RFP, the Borough shall commence a proceeding to identify the future cable-related needs and interest 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 Borough, providing the information and material set forth in Subsection C. Each initial applicant shall follow the procedures, instructions and requirements set forth in the RFP as if set forth and required herein. The Borough Manager, or Borough Secretary, 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 address
of the 10 largest holders of an ownership interest in the applicant and affiliates
of the applicant, and all persons with 25% or more ownership interest in 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)
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 Borough 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 municipality or governing body 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, applicant
was convicted of any act or omission of such character that the applicant
cannot be relied upon to deal truthfully with the Borough 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 initial applicant shall not be issued a franchise
if it files materially misleading information in response to an RFP issued
by the Borough 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 Borough holds a controlling interest in the applicant or an
affiliate of the applicant.
(b)
Notwithstanding the foregoing, the Borough 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 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 Borough 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,
headend 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 Borough, 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 Borough may request of the applicant
that is relevant to the Borough'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 Borough
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 Borough.
(2)
Whether the quality of the applicant's service under
an existing franchise in the Borough, including signal quality, response to
customer complaints, level of services, 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 § 35-29C(4),
the applicant will provide adequate public, educational and governmental access
channel capacity, equipment 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; 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 Borough, or whether grant of
the application may eliminate or reduce competition in the delivery of cable
service in the Borough.
E.
If the Borough 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 Borough 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 Borough 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 Borough 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 Borough grants a franchise subject to the applicant's
entry into a franchise agreement, the Borough and the franchisee shall agree
on the terms of a franchise agreement within 30 calendar days from the date
of Borough resolution granting the franchise. The Borough may extend this
period for good cause. If agreement is not reached with the Borough within
30 calendar days from the date of the Borough resolution granting the franchise,
or if the period is not extended by the Borough, the franchise will be null
and void without further action by the Borough. The Borough shall approve
or disapprove the proposed agreement by resolution or may direct that it be
subject to further negotiation.
To be acceptable for filing, an initial application submitted after
the effective date of this chapter shall be accompanied by a filing fee in
the following amount, as appropriate:
The franchise agreement shall specify the construction schedule of an
initial franchise.
A.
All installations shall be underground in those areas
of the Borough where public utilities providing both telephone and electric
service are underground at the time of installation. In areas where either
telephone or electric utility facilities are above ground at the time of installation,
grantee may install its service above ground, provided that at such time as
both those facilities are required to be placed underground by the Borough
or are placed underground, the grantee shall likewise place its services underground.
Where not otherwise required to be placed underground by this chapter or the
franchise agreement, the grantee's system shall be located underground
at the request of a property owner, provided that the excess cost over the
aerial location shall be borne by the property owner making the request. The
grantee shall not be required to construct, operate or maintain any flush-mounted
or below-level appurtenances such as subscriber taps, line extenders, system
passive devices, pedestals or other related equipment. All cable passing under
the public way shall be installed in accordance with all state and local laws
and ordinances.
B.
Prior to construction, significant alteration or disturbance
of the public right-of-way, the grantee shall in each case make application
for and obtain all necessary and required permits and authorizations before
proceeding. Such permits shall not be unreasonably withheld. The Borough shall
issue all such permits at no cost to the Borough, such costs being covered
by the franchise fee payment.
C.
Interference with persons, improvements, public and private
property and utilities. The grantee's system and facilities, including
poles, lines, equipment and all appurtenances, shall be located, erected and
maintained so that such facilities shall:
(1)
Not endanger or interfere with the health, safety or
lives of persons;
(2)
Not interfere with the free and proper use of public
streets, alleys, bridges, easements or other public ways, places or property,
except to the minimum extent possible during actual construction or repair;
(3)
Not interfere with the rights and reasonable convenience
of private property owners, except to the minimum extent possible during actual
construction repair; and
(4)
Not obstruct, hinder or interfere with any gas, electric,
water or telephone facilities or other utilities located within the Borough.
D.
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, property or other surfacing, the grantee shall, at
its own cost and expense and in a manner approved by the Borough, replace
and restore all paving, sidewalk, landscaping or surfacing of any property
or public way disturbed to a condition reasonably comparable to the condition
that existed immediately prior to the disturbance before said work was commenced
and in a good workmanlike, timely manner in accordance with standards for
such work set by the Borough. Such restoration shall be undertaken within
no more than 10 business days after the damage is incurred and shall be completed
within 30 business days unless otherwise authorized by the Borough. Upon written
application by the grantee to the Borough, the Borough may grant a reasonable
extension of time to allow the grantee to comply with the restoration deadline.
E.
Relocation of the facilities. In the event that at any
time during the period of the franchise the Borough, county or state shall
lawfully elect to alter or change the grade of any street, alley or other
public ways or make repairs or improvements to any infrastructure, the grantee,
upon reasonable notice by the proper authority, shall remove or relocate as
necessary its poles, wires, cables, underground conduits, manholes and other
fixtures at its own expense and with all due deliberate speed.
F.
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued by the
Borough, temporarily raise or lower its wires to permit the moving of buildings.
The person requesting the same shall pay the expense of such temporary removal,
raising or lowering of wires, and the grantee shall have the authority to
require such payment in advance. The grantee shall be given reasonable advance
notice to arrange for such temporary wire changes.
G.
Tree trimming. The grantee shall have the authority,
except when in conflict with existing Borough ordinances, to trim any trees
upon or overhanging the public right-of-way so as to prevent the branches
of such trees from coming in contact with system facilities. The grantee shall
not trim trees to any greater extent than is reasonably necessary for the
construction, erection, installation, maintenance and use of the cable system.
H.
Easements. All necessary easements over and under private
property shall be arranged for by the grantee.
A.
Prior to the erection or installation of any towers,
poles or conduits or a system-wide upgrade or rebuild of the cable system,
the grantee shall submit to the Borough and other designated parties a map
indicating the location of all existing and proposed facilities.
B.
Where poles already exist for use in serving the Borough
are available for use by the grantee, the Borough may require the grantee
to use such poles and structures, if compatible with engineering requirements.
A.
Within 30 days of the grant of an initial franchise,
the grantee shall provide the Borough with a written progress report detailing
work completed to date on initial construction or a description of the progress
in applying for any necessary agreements, licenses or certifications and any
other information the Borough Manager or Borough Secretary or his designee
may deem necessary. The content and format of the report will be determined
by the Borough Manager or Borough Secretary or his designee and may be modified
at his discretion.
B.
Such written progress reports shall be submitted to the
Borough on a monthly basis throughout the entire initial construction. The
Borough Manager or Borough Secretary or his designee may require more frequent
reporting if he determines it is necessary to better monitor the grantee's
progress.
C.
Prior to the commencement of any initial construction
of a cable television system, the grantee shall produce an informational document
to be distributed to all residents of the area to be under construction which
shall describe the activity that will be taking place. The informational document
shall be reviewed and approved by the Borough Manager or Borough Secretary
or his designee prior to its distribution.
