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 of this section.
(1)
Upon receipt of a request for an RFP, the Borough shall commence a proceeding to identify the future cable-related 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 Borough, providing the information and material set forth in Subsection C of this section.
(2)
The procedures, instructions, and requirements set
forth in the RFP shall be followed by each applicant as if set forth
and required herein. The Borough Manager, 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 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;
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)
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:
(a)
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.
(b)
The applicant must not have had any cable television
Franchise validly revoked by any Borough within three years preceding
the submission of the application.
(c)
The applicant must have the necessary authority
under Pennsylvania law to operate a Cable system.
(d)
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.
(e)
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 ant-competitive
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 Borough, 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 Borough holds a controlling interest
in the applicant or an Affiliate of the applicant. 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-(b) or (e) of this section, by virtue of the particular
circumstances surrounding the matter an 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 of 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 Franchise, 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 Subsection
C-4 of this section, 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
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. This period
may be extended for good cause by the Borough. 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 application
submitted after the effective date of this Ordinance No. 304 shall
be accompanied by a filing fee as established by a resolution of Borough
Council.
The Franchise Agreement shall specify the construction
schedule.
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 place 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 aerial location shall be borne by the property owner making the
request. All cable passing under the public way shall be installed
in accordance with all state and local laws and ordinances.
B.
Prior to construction or alteration in any public
way, however, the grantee shall in each case file plans with the appropriate
Borough agencies and obtain all necessary construction permits and
authorizations before proceeding.
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 an in a manner approved by the Borough,
replace and restore all paving, sidewalk, landscaping, or surfacing
of any property or public way, disturbed, in as good a condition as,
or better than, 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 in incurred and shall be completed
within 30 business days unless otherwise authorized by the Borough.
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 remove, raise or lower its wire to permit
the moving of buildings. The expense of such temporary removal, raising
or lowering of wires shall be paid by the person requesting the same,
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,
except that at the option of the Borough, such trimming as may be
required by the grantee may be done by the Borough, or under its supervision
and direction, at the expense of the grantee. The grantee shall notify
the Borough prior to trimming any trees in the right-of-way.
H.
Easements. All necessary easements over and under
private property shall be arranged for by the grantee.
A.
Prior to the erection of any towers, poles or conduits
or the upgrade or rebuild of the cable communications system under
this chapter, the grantee shall first submit to the Borough and other
designated parties for approval a concise description of the facilities
proposed to be erected or installed, including engineering drawings,
if required, together with a map and plans indicating the proposed
location of all such facilities. No erection or installation of any
tower, pole, underground conduit, or fixture or any rebuilds or upgrading
of the cable communications system shall be commenced by any person
until approval therefor has been received from the Borough, such approval
not to be unreasonably withheld.
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.
A.
Within 30 days of the grant, the grantee shall provide
the Borough with a written progress report detailing work completed
to date on initial construction or a rebuild of a cable television
system. Such report shall include a description of the progress in
applying for any necessary agreements, licenses, or certifications
and any other information the Borough Manager may deem necessary.
The content and format of the report will be determined by the Borough
Manager 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
or rebuild process. The Borough Council may require more frequent
reporting if it determines it is necessary to better monitor the grantee's
progress.
C.
Prior to the commencement of any initial construction
or rebuild 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 prior to its distribution.
