A.
A written application shall be filed with the municipality
for grant of an initial franchise or modification of a franchise agreement,
in accordance with applicable law.
B.
To be acceptable for filing, a signed original of the application shall be submitted, together with 12 copies. The application must be accompanied by any required application filing fee as set forth in § 108-17, 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 municipality for public inspection.
A.
A person may apply for an initial franchise by submitting
a request for issuance of a request for proposals ("RFP") by the municipality.
Upon receipt of a request for an RFP, the municipality shall, if necessary,
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, which shall be mailed to the person requesting its issuance and made
available to any other interested party.
B.
The applicant shall respond to the RFP by filing an application within the time directed by the municipality, providing the information and material set forth in § 108-15. The procedures, instructions and requirements set forth in the RFP shall be followed by each applicant. The municipality or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
C.
Notwithstanding the provisions of Subsections A and B, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in § 108-15 and requesting an evaluation of that application pursuant to Subsection D of this section. Prior to evaluating that application, the municipality may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in Subsection D of this section and may seek additional applications.
D.
In evaluating an application for a franchise, the municipality
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 any municipality.
(2)
Whether the quality of the applicant's service under
any existing franchise in any municipality, including signal quality, response
to customer complaints, 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 application satisfies any minimum requirements
established by the municipality and is otherwise 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 under Subsection D(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 that 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 systems to meet the cable-related needs and interests of the community;
and the comparative superiority or inferiority of competing applications.
(7)
What effects a grant of the application may have on competition
in the delivery of cable service in the municipality.
E.
If the municipality finds that it is in the public interest
to issue a franchise considering the factors set forth above, and subject
to the applicant's entry into an appropriate franchise agreement, it shall
issue a franchise. If the municipality denies a franchise, it will issue a
written decision explaining why the franchise was denied. Prior to deciding
whether or not to issue a franchise, the municipality may hold one or more
public hearings or implement other procedures under which comments from the
public on an application may be received. The municipality 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 that 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.
A.
An RFP for the grant of an initial franchise shall require,
and any such application submitted shall contain, at a 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)
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 municipality, which was denied
on the grounds that the applicant failed to propose a cable system meeting
the future 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 franchising authority 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)
The applicant must have the necessary authority under
federal law to hold the franchise and operate a cable system. An applicant
must have, or show that it is qualified to obtain, any necessary federal franchises
or waivers required to operate the system proposed.
(e)
The 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 municipality
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.
(f)
The applicant shall not be issued a franchise if it filed
materially misleading information in its application or intentionally withheld
information that the applicant lawfully is required to provide.
(g)
The applicant shall not be issued a franchise if an elected
official of the municipality holds a controlling interest in the applicant
or an affiliate of the applicant.
(h)
Notwithstanding the foregoing, the municipality shall
provide an opportunity to an applicant to show that it would be inappropriate
to deny it a franchise by virtue of the particular circumstances surrounding
the matter and the steps taken by the applicant to cure all harms flowing
therefrom and prevent their recurrence, the lack of involvement of the applicant's
principals or the remoteness of the matter from the operation of cable 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 any interest therein, provided that an applicant
that holds a franchise for the municipality and is seeking renewal of that
franchise need only provide this information for other communities where its
franchise was scheduled to expire in the two calendar years prior to and after
its application was submitted.
(6)
Identification of the area of the municipality 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, installation, converters and all other proposed equipment
or services.
(10)
A demonstration of how the applicant will reasonably
meet the future cable-related needs and interests of the community, including
descriptions of how the applicant will meet the needs described in any recent
community needs assessment conducted by or for the municipality, and how the
applicant 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 the 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 public
rights-of-way and other property that would be used by the applicant 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 municipality may request of the
applicant that is relevant to the municipality'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 application meets all federal and state law requirements.
B.
The municipality may, at its discretion or upon request
of an applicant, waive, in writing, the provision of any of the information
required by this section.
An application for modification of a franchise agreement pursuant to
47 U.S.C. § 545 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 demonstrating 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 municipality to make an informed determination on the application
for modification.
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.
A.
To be acceptable for filing, an application submitted
after the effective date of this chapter shall be accompanied by a filing
fee as set from time to time by resolution of the Board of Supervisors in
the amount to cover costs incidental to the awarding or enforcement of the
franchise, as appropriate.
B.
In addition, the municipality may require an applicant
for an initial franchise to reimburse the municipality for its reasonable
out-of-pocket expenses in considering the application, including consultants'
fees. Payments made by a franchisee hereunder are not a franchise fee and
fall within one or more of the exceptions in 47 U.S.C. § 542(g)(2),
and no such payments may be passed through to subscribers in any form.
An applicant shall be notified of any public hearings held in connection
with the evaluation of its application and shall be given an opportunity to
be heard. In addition, prior to the issuance of a franchise, the municipality
shall provide for the holding of a public hearing within the proposed franchise
area, following reasonable notice to the public, at which every applicant
and its application shall be examined and the public and all interested parties
afforded a reasonable opportunity to be heard. Reasonable notice to the public
shall include causing notice of the time and place of such hearing to be published
in a newspaper of general circulation in the proposed franchise area once
a week for two consecutive weeks. The first publication shall be not less
than 14 days before the day of the hearing.
