Borough of West Grove, PA Article III Applications for Grant, Renewal or Modification of Franchises

§ 151-6 Written application.

A. A written application shall be filed with the Borough for: (1) grant of an initial franchise; (2) 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 (3) modification of a franchise pursuant to this chapter. The Borough may require the applicant 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 10 copies. The application must be accompanied by the required application filing fee as set forth in § 151-10, 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 Borough for public inspection.

§ 151-7 Application for grant of an initial franchise.

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 § 151-7D. 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 terms, 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 § 151-7C. 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 Secretary, or her designee, shall be authorized to seek additional information from any applicant and to establish deadlines for the submission of that information.

B. Notwithstanding the provisions of § 151-7A, a person may apply for an initial franchise by submitting an unsolicited proposal, providing the information and material set forth in § 151-7C, and requesting an evaluation of that proposal pursuant to § 151-7D.

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; 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 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 franchising authority 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] The applicant must have, or show that it is qualified to obtain, the necessary federal licenses or waivers required to operate the system proposed. A franchise will not be issued to an applicant that may not hold the franchise as a matter of federal law.

[5] The 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 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 §§ 151-7, 151-8D 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 cable television systems.

(4) A statement prepared by a duly authorized financial officer 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 of 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, head end, 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.

(a) 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 West Grove, including signal quality, response to customer complaints, and billing practices, has been reasonable in light of community needs and interests.

(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 § 151-7D(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 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; and, to the extent permissible pursuant to the provisions of the Cable Act, the comparative superiority or inferiority of competing proposals.

(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, effective upon the written acceptance of the applicant. 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, renews or modifies a franchise effective upon the written acceptance of the applicant, the applicant shall submit such acceptance within 30 calendar days from the date of the Borough resolution or ordinance granting, renewing or modifying the franchise. This period may be extended for good cause. If such acceptance is not submitted within 30 calendar days from the date of the Borough resolution or ordinance granting, renewing or modifying the franchise, or if the period is not extended by the Borough, the franchise grant, renewal or modification will be null and void without further action by the Borough.

§ 151-8 Application for grant of a renewal.

Franchise renewal 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 Borough 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 § 151-7 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. Upon completion of the review and evaluation process set forth in Section 626(a)(1), (2) of the Cable Act, 47 U.S.C. § 546(a)(1), (2), should that process be invoked, a cable operator seeking renewal of a franchise may, on its own initiative or at the request of a franchising authority, submit a proposal for renewal.

B. Upon receipt of the proposal for renewal, the Borough shall publish notice of its receipt and make copies available for review by the public.

C. Within four months of the date it receives the proposal for renewal, and based on the standards set forth in Section 626(c) of the Cable Act, 47 U.S.C. § 546(c), the Borough will either:

(1) Pass a resolution agreeing to renew the franchise, subject to the negotiation of franchise terms mutually satisfactory and agreeable to the Borough and the franchisee and subject to written acceptance by the franchisee as provided for in § 151-7F of this chapter; or

(2) Pass a resolution that makes a preliminary assessment that the franchise should not be renewed.

D. If a preliminary assessment is made that a franchise should not be renewed, at the request of the franchisee, the Borough 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).

E. If renewal of a franchise is denied, the Borough may acquire ownership of the cable 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 cable system valued as a going concern but with no value allocated to the franchise itself.

F. If renewal of a franchise is denied and the Borough does not purchase the cable system or approve or effect a transfer of the cable system to another person, the Borough 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 Borough may have the removal done at the former franchisee's and/or surety's expense.

G. To the extent that any of the provisions of this chapter are inconsistent with Section 626 of the Cable Act, 47 U.S.C. § 546, they shall not apply.

§ 151-9 Application for modification of franchise.

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 Borough 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.

§ 151-10 Filing fees.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

To be acceptable for filing, an application for initial franchise, renewal or modification submitted after the effective date of this chapter shall be accompanied by a filing fee as set by Borough Council, as appropriate.

§ 151-11 Public hearings.

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.

§ 151-12 Grant of franchise.

The Borough may grant one or more cable television 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; however, no such amendment shall foreclose the franchisee's vested right hereunder to occupy the franchise for its duration except as otherwise provided hereunder.

§ 151-13 Franchise required; operation of cable system without franchise.

A. No person may construct or operate a cable system over, on, or under public streets in the Borough without a franchise granted by the Borough unless otherwise authorized by law.

B. Any person who occupies Borough streets or public rights-of-way for the purpose of operating or constructing a cable system and who does not hold a valid franchise from the Borough 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 Borough at any time may require such person to apply for a franchise within 30 days of receipt of a written notice by the Borough that a franchise is required; and/or require such person to remove its property 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 Borough and subject to the provisions of this chapter.