A.
Request for proposals.
(1)
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. 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.
(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 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 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)
The applicant must meet the following 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, the
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 § 122-23C(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 exiting 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 § 122-23C(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.
(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 chapter shall be accompanied by a filing
fee in the following amount*, as appropriate:
The franchise agreement may 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 aboveground at the time
of installation, the grantee may install its service above the 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 shall have the sole discretion to construct,
operate, and maintain all of its transmission and distribution facilities,
or any part thereof, aerially or underground. The grantee shall not
be required to construct, operate, or maintain any flush-mounted or
below-ground-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 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. The Borough shall issue all such permits at no
cost to the grantee, such costs being covered by the franchise fee.
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 or 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, in a good workmanlike, timely manner
in accordance with standards for such work set 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 raise or lower its wires 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. The grantee
shall not trim said trees to any greater extent than is reasonably
necessary for the construction, erection, installation, maintenance
and use of the cable system. 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 or installation of any towers, poles or underground
conduits under this chapter, the grantee shall first submit to the
Borough and other designated parties for approval a map indicating
the proposed location of all such facilities. No erection or insulation
of any tower, pole, or underground conduit 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 existing 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 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 grantees'
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.
