Township of Halfmoon, PA Article IV Franchise Provisions

§ 92-12 Franchise required.

It shall be unlawful for any person to construct, operate or maintain a cable system or other competing cable services, including OVS, in the grantor without a franchise in the form of a franchise agreement authorizing the same, unless valid applicable federal or state law prohibits the grantor's enforcement of such a requirement. Such franchise agreement shall comply with all of the specifications of this chapter unless otherwise specified by the grantor.

§ 92-13 Franchise not exclusive.

A. Any franchise granted by the grantor shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable system or any component thereof to any other person, including itself, as it deems appropriate, subject to this chapter and valid applicable state and federal law.

B. The terms and conditions of any franchise granted or renewed after the effective date of this chapter shall be, when taken as a whole, no less burdensome or more beneficial than any other franchise granted or renewed subject to this chapter when taking into consideration, where reasonably warranted, the situation that existed at the time in which the earlier terms were adopted; provided, however, that nothing herein shall be construed as requiring the use of identical terms or conditions, or limit the enforceability of conditions that are freely negotiated.

§ 92-14 Authority for use of rights-of-way.

For the purpose of constructing, operating, and maintaining a cable system in the grantor, grantee may erect, install, construct, repair, replace, relocate, reconstruct and retain in, on, over, under, upon, across and along the rights-of-way accessible for construction of a cable system within the grantor such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the cable system, subject to the requirements of this chapter and all other applicable grantor codes. Nothing in this chapter shall be construed to require the grantee to construct, operate, or maintain underground any ground-mounted appurtenances such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.

§ 92-15 Franchise term.

A franchise shall commence upon acceptance by grantee as defined in Article XV herein and as may continue for up to 15 years from the date of acceptance, unless renewed, revoked or terminated sooner as herein provided.

§ 92-16 Area of cable service.

Every franchise shall apply to the area designated by the franchise agreement approved by the grantor.

§ 92-17 Application for grant of initial franchise.

In conformance with the Cable Act[1] and FCC rules, an application for an initial franchise for a cable system to provide cable service shall at a minimum be subject to additional information needed by the grantor, to understand the application, including the following:

A. The applicant's name.

B. The names of the applicant's officers and directors.

C. The business address of the applicant.

D. The name and contact information of a designated contact for the applicant.

E. A description of a geographic area of the grantor that the applicant proposes to serve.

F. The public access or EG access channel capacity and capital support proposed by the applicant.

G. The term of the agreement proposed by the applicant.

H. Whether the applicant holds an existing authorization to access the public rights-of-way in the grantor franchise.

I. The amount of franchise fee the applicant offers to pay.

J. Information necessary for grantor to evaluate a grantee's legal, technical, and financial qualifications to construct, own, and operate a cable system.

K. Any additional information required by applicable state laws or grantor ordinances.

[1] Editor's Note: See 47 U.S.C. § 521 et seq.

§ 92-18 Consideration of initial franchise application.

Applicants may be evaluated according to the information included in an application as required by § 92-17, and within a maximum time, after 90 days for persons with existing authority to access rights-of-way and 180 days for persons that do not have authority to access rights-of-way. The times start on the date an applicant files an application or other writing including certain minimum information which is set forth in § 92-17 of this chapter and deemed complete by the grantor. The grantor and an applicant may agree, in writing, to extend the ninety-/one-hundred-eighty-day time period for negotiations. It may then be adopted at the date as permitted by this section. If the ninety-/one-hundred-eighty-day time elapses without action by the grantor, the applicant is automatically granted an interim franchise based on the application submitted. Thereafter, the grantor and applicant may continue to negotiate the terms of a franchise in an attempt to reach a negotiated franchise. The ninety-/one-hundred-eighty-day time may be tolled by the grantor if it has requested and not received information from the applicant.

§ 92-19 Grant of additional franchise and competing service.

Since competing or overlapping franchises may encourage the introduction of better cable services and quality at lower prices, the grantor will at all times attempt to accommodate additional entrants. At the same time it is recognized that the introduction of overlapping cable systems could have a potential adverse impact on the rights-of-way, and on the quality and availability of existing cable services to the public. Accordingly, the grantor shall issue a franchise in an area where another grantee is operating only following a public hearing to consider the potential impact which the grant of an additional franchise may have on the community and the rights-of-way. In considering whether to grant one or more additional franchises, the grantor shall specifically consider, and address in a written report, the following issues:

A. Whether or not applicant has provided, at a minimum, information with its application as required by § 92-17, and consideration described in § 92-18.

B. The legal, technical, and financial qualifications of applicant and agreement by a grantee to comply with such requirements of the grantor as may be determined by it to be applicable to a grantee in conformance with applicable law.

C. Acceptance of a franchise and the terms therein.

D. The capacity of the rights-of-way to accommodate one or more additional cable systems and the potential disruption of rights-of-way and private property that may occur if one or more additional franchises are granted.

E. Such other information as the grantor may deem appropriate to be considered prior to granting any competing or overlapping franchise.

§ 92-20 Application for franchise renewal.

Renewals will be according to valid applicable law, as amended. A grantor and a grantee, by mutual consent, may enter into renewal negotiations at any time during the franchise term of a franchise agreement. According to applicable law, grantor will review and evaluate the past performance of a grantee, including compliance with an existing franchise; also, review and determination by grantor of current and future community needs and the technical, financial, and legal capabilities of a grantee to meet the current and future cable service-related needs in a new franchise considering the reasonable cost to do so.

§ 92-21 Permits for nonfranchised entities.

The grantor may issue a license, easement, or other permit to a person other than the grantee to permit that person to traverse any portion of the rights-of-way for purposes other than providing cable service. Such license or easement, absent a grant of a franchise in accordance with this chapter, shall not authorize nor permit said person to provide cable service of any type to any home or place of business within the grantor nor render any other service within the grantor except as specifically authorized by grantee.

§ 92-22 Authority of grantor; jurisdiction; franchise agreements.

A. All franchises granted pursuant to this chapter are subject to this chapter, including at least the following provisions:

(1) The continuing authority of grantor to impose such other regulations of general applicability through lawful exercises of the grantor's police powers as may be determined by the grantor to be conducive to the health, safety, and welfare of the public.

(2) The continuing authority of grantor to control and regulate the use of rights-of-way.

(3) The authority of grantor or its designees upon reasonable notice to inspect all construction or installation work performed by a grantee in grantor subject to the provisions of the franchise and this chapter, and to make such inspections as it will find necessary during regular business hours to insure compliance with the terms of the franchise, this chapter, and applicable law.

(4) The authority of grantor or its designees to inspect the financial records related to franchise fees, maps, plans, and other like materials of the grantee upon reasonable notice to insure compliance with the terms of the franchise, this chapter, and applicable law.

(5) The authority of a grantor, upon the revocation or denial of renewal as provided therein, to require a grantee to remove at grantee's own expense any and all portions of a cable system from the rights-of-way within the grantor; provided, however, grantee shall not be required to remove its cable system, or to relocate the system, or to sell the system, or any portion thereof as a result of revocation, denial of renewal, or any other action to forbid or disallow grantee from providing cable services if the system is actively being used to provide noncable services or other services not regulated under the Cable Act.[1]

[1] Editor's Note: See 47 U.S.C. § 521 et seq.

(6) The authority of a grantor to require a franchise fee.

B. Federal, state, and grantor jurisdiction.

(1) This chapter and any franchise agreement will be construed in a manner consistent with all applicable law.

(2) In the event that the state or federal government discontinue preemption in any area of cable service over which it currently exercises jurisdiction in such a manner as to expand rather than limit municipal regulatory authority, the grantor and a grantee shall in good faith negotiate applicable change to modify a franchise agreement to comply with the changed law to ensure competitive equity between a grantee and other cable operators, taking into account the conditions under which other cable operators are permitted to provide cable services to subscribers in the grantor.

(3) This chapter will apply to all franchises granted or renewed from and after the effective date of this chapter.

(4) Grantee will not be relieved of grantee's obligation to comply with any of the provisions of this chapter or any franchise agreement granted pursuant to this chapter by reason of any failure of the grantor to enforce prompt compliance.

(5) In the event of a change in applicable law affecting this chapter, the grantor may amend this chapter to comply with such change in applicable law.

C. Franchise agreement.

(1) By acceptance of a franchise, a grantee acknowledges and agrees, unless otherwise provided in the franchise, that this chapter in whole and its exhibits[2] are incorporated and made part of a franchise agreement and shall be a binding contract. In addition, the franchise agreement accepted by a grantee is deemed to include the following representations:

(a) Grantee accepts and agrees to all of the provisions of this chapter, as to construction, operation, or maintenance of the cable system, which the grantor may include in the franchise agreement subject to applicable law.

(b) Grantee has examined all of the provisions of this chapter and agrees that the provisions thereof are valid and binding and enforceable as of the effective date of the franchise agreement.

(c) Grantee recognizes the right of the grantor to adopt such additional regulations of general applicability as it will find necessary in the exercise of the grantor's police power. Any amendment to the grantor Code binding on grantee shall be confined to changes which do not materially alter the rights and obligations of grantee granted under a franchise agreement.

[2] Editor's Note: Said exhibits are on file in the Township offices.

(2) The franchise agreement will contain such further conditions or provisions as may be included in the proposal of a grantee and negotiated between the grantor and a grantee. In case of such conflict or ambiguity between any terms or provisions of a franchise agreement and this chapter, the franchise agreement will control.