[Adopted 7-17-1995 by Ord. No. HR-243, which
ordinance also repealed Ord. No. HR-47]
This article shall be known and may be cited
as the "Tredyffrin Township Cable and Other Telecommunication System
Ordinance."
This article regulates cable and other telecommunication
service pursuant to the township's power to regulate telephone, telegraph
and electric power poles and/or other obstructions erected upon or
in the township's streets, roads and/or rights-of-way, exercise the
township's general police powers, enforce the Township Code and exercise
authority pursuant to the federal and state law.
It is the intent of the township that this article
conform to the federal and state law. If a court of competent jurisdiction
holds, by its final order, any provision of this article to be in
conflict with the federal and state law, the federal and state law
will control and this article, only to the extent that any provision
is so held to be in conflict with the federal and state law, shall
not apply.
This article shall be construed broadly to promote
the maintenance of peace, good government and public health, safety
and general welfare.
All other township ordinances and regulations
are repealed to the extent inconsistent herewith. All franchise agreements
between the township and any operator are abrogated to the extent,
and only to the extent, inconsistent herewith, except to the extent
abrogation is otherwise required or prohibited by prevailing law.
Any ordinance or other document authorizing a grant of franchise is
otherwise incorporated herein by reference.
For purposes of this article, the following
terms shall have the meanings indicated, unless otherwise expressly
stated or the context clearly indicates otherwise. When not inconsistent
with the text, words used in the present tense include the future,
tense, words in the plural include the singular, and words in the
singular include the plural. Unless otherwise expressly stated, words
not defined in this section shall be given the meaning set forth in
Title 47 of United States Code, 47 U.S.C § 521 et seq.,
as amended, and, if not defined therein, their common and ordinary
meaning.
Any channel or channel capacity designated for noncommercial
public, educational and/or governmental use.
When used in relation to any person, another person who owns
or controls, is owned or controlled by or is under common ownership
or control with such person.
All equipment in a subscriber's home used to receive basic
service and/or other tiers of regulated programming service and/or
unregulated service. Equipment shall include but not be limited to
converter boxes; remote control units; connections for additional
television receivers; antennas; other home wiring; and other similar
devices or apparatus.
Any service tier that includes the retransmission of local
broadcast signals.
The rate charged by an operator for basic service, and associated
equipment costs.
The Tredyffrin Township Board of Supervisors.
The Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq., as amended from time to time.
The one-way or interactive transmission to subscribers of
video, audio, information and/or other programming services.
A facility consisting of a set of transmission paths and
associated signal generation, reception and control equipment that
is designed to provide cable and other telecommunication service to
subscribers within the township, but such term does not include:
A facility that serves only to retransmit the
television signals of one or more television signals of one or more
television broadcast stations.
A facility that serves only subscribers in one
or more multiple-unit dwellings under common ownership, control or
management, unless such facility or facilities use any public right-of-way,
including streets or easements.
A facility of a common carrier or utility, only
to the extent that regulation of such common carrier or utility is
prohibited by federal or state law.
The Tredyffrin Township Cable Advisory Committee, its designee,
or any successor governmental entity thereto.
[1]Any channel on a cable and other telecommunication system
designated for noncommercial educational use by the public school
system serving the township.
The Federal Communication Commission, its designee, or any
successor governmental entity thereto.
The Federal Cable Communications Policy Act of 1984, as amended
by the Cable Television Consumer Protection and Competition Act of
1992 and all regulations promulgated by the FCC thereunder, as any
of the foregoing may be amended from time to time. "Federal or state
law" further includes any other federal or state statute or regulation,
currently or hereinafter in force, under which the township has the
authority to control or regulate cable and other telecommunication
services or systems.
The nonexclusive rights granted in accordance with this article
to construct, operate and maintain a cable and other telecommunication
system along the public rights-of-way within all or a specified area
of the township. No such franchise authorization shall mean nor include
any license or permit required for the privilege of transacting and
carrying on a business within the township as required by the ordinances
and laws of the township or for excavating or performing other work
in or along public rights-of-way.
The area of the township that the franchisee is authorized
to serve by its franchise.
Any person, so defined, who has been granted a franchise
by the township.
Any channel on a cable and other telecommunication system
designated for noncommercial local government access use.
Any and all cash, credits, property or other consideration
of any kind or nature, received during a defined twelve-month period,
directly or indirectly, by the franchisee, its affiliates or any person
in which the franchisee has a financial interest or by any other entity
that is an operator of the system arising from, in connection with,
attributable to or in any way derived from the provision by the franchisee
of cable and other telecommunication service, including the studios
and other facilities associated therewith. Gross annual revenues include,
but are not limited to, monthly fees charged subscribers for any cable
and other telecommunication service, including but not limited to
basic, programming, optional, premium, per-channel or per-program
service or tier of service; installation, disconnection, reconnection
and change-in-service fees, leased channel fees, late fees and administrative
fees; fees, payments or other consideration received from programmers
for carriage of programming on the system; revenues from converter
rentals or sales; studio rental, production equipment and personnel
fees; advertising revenues; barter; revenues from program guides;
and revenues from home shopping and bank-at-home channels. The township
may require that gross annual revenues also includes revenues from
the sale or carriage of non-cable and other telecommunication services,
including information services. This provision is to be construed
in its broadest sense, to include all present and future sources of
revenue unless specifically excluded. Gross annual revenue shall be
the basis for computing the franchise fee under this article. Gross
annual revenue shall not include any sales, service, occupation or
other excise tax to the extent that such taxes are charged separately
from normal service charges and are remitted by the franchisee directly
to the taxing authority. Subscriber-based revenue shall be calculated
by determining revenue derived from subscribers within the township.
Non-subscriber-based revenue shall be calculated on a pro rata basis
(revenue/subscribers times the number of subscribers within the township).
All figures used in determining gross annual revenue shall be calculated
to the third decimal point.
The Township Manager.
The minimum customer service standards established by the
FCC or otherwise pursuant to federal or state law.
Refers to programming, the primary purpose of which does
not propose a sale of a commercial product or service. The term expressly
does not refer to programming the cost of which is underwritten by
one or more commercial or noncommercial programmers, even where the
underwriting is acknowledged as part of the program.
Any person or group of persons who provides cable and other
telecommunication service over a cable and other telecommunication
system and directly or through one or more affiliates owns a significant
interest in such cable and other telecommunication system or who otherwise
owns, controls or is responsible for, through any arrangement, the
management and/or operation of a cable and other telecommunication
system.
A domestic or foreign individual, partnership, association,
joint-stock company, trust, corporation, joint venture, government
entity organization, other legal entity or any lawful successor thereto
or transferee thereof.
A category of cable and other telecommunication service provided
by the franchisee and for which a separate charge is made by the franchisee.
Any channel on a cable and other telecommunication system
designated for noncommercial use by the township, township residents
or noncommercial organizations within the township and which is available
for such use on a nondiscriminatory basis.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway,
easement or similar property in which the township now or hereafter
holds any property interest which, consistent with the purposes for
which it was dedicated, may be used for the purpose of installing
and maintaining a cable and other telecommunication system. No reference
herein to a public right-of-way shall be deemed to be a representation
or guaranty by the township that its interest or other right to control
the use of such property is sufficient to permit its use for such
purposes and a franchisee shall be deemed to gain only those rights
to use as are properly in the township and as the township may have
the undisputed right and power to give.
Any sale, exchange or barter transaction.
The surface of and the space above or below any public street,
public roadway, public highway, public freeway, public lane, public
way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or public right-of-way
now or hereafter held by the township or in which the township otherwise
holds an interest, which shall entitle the franchisee to the use thereof
for the purposes of installing over poles which wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and appurtenant
to the operation of the system.
Any person who legally receives cable and other telecommunication
service, whether or not a fee is paid for such service.
Cable and other telecommunication system equipment and physical
plant used by the franchisee to provide service in the franchise area.
The Township of Tredyffrin, Chester County, Pennsylvania,
as represented by the Board of Supervisors.
The Township of Tredyffrin Home Rule Charter, ordinances
enacted thereto and, where applicable, the Pennsylvania Second Class
Township Code.
[2]Any transaction in which an ownership or other interest in
the franchisee, its cable and other telecommunication system or any
person that is an operator of the cable and other telecommunication
system is transferred from one person or group of persons to another
person or group of persons so that control of the franchisee is transferred;
or the rights and/or obligations held by the franchisee under a franchise
are transferred or assigned to another person or group of persons.
Unless otherwise specified, "control," for these purposes, means working
control, in whatever manner exercised. Unless otherwise specified,
the addition, deletion or other change of any general partner of the
franchisee, any person who owns or controls the franchisees or an
operator of the cable and other telecommunication system is such a
change of control.
A person utilizing a channel or equipment and facilities
for purposes of producing and/or transmitting material, as contrasted
with the receipt thereof in the capacity of a subscriber.
The Manager, in conjunction with the advice
and assistance of the Committee, shall be responsible for the enforcement
of the Board's rate decisions and orders and the minimum customer
service standards and the administration of this article, including,
without limitation, the broad authority to administer and enforce
the following duties pursuant to this article, all of which shall
be carried out with the advice and assistance of the Committee.
A.
To take such action, on behalf of the township, as
may, from time to time, be required to obtain and maintain the township's
certification and authority to regulate basic service rates and to
assure that the township complies with federal or state law.
B.
To establish and protect the township's right to otherwise
regulate cable and other telecommunication systems or service to the
fullest extent permitted by federal or state law.
C.
To provide and give all notices which are required
to exercise the township's authority to regulate basic service rates
or other regulatory authority.
D.
To make all required and/or appropriate filings to
and communications with the FCC.
E.
To receive, file and review for completeness all submissions,
petitions, applications, requests, comments and other filings required
and/or permitted to be made to the township pursuant to federal or
state law.
F.
To receive, record and deposit any fees paid to the
township pursuant to this article.
G.
To establish organize and maintain the township's
public records concerning this article.
H.
To provide the Board with all information necessary
for the Supervisors to exercise oversight and control over all proceedings,
administrative practices and procedures and enforcement concerning
this article and to be aware of all service and rate issues which
may require legislative or policy action.
I.
To enforce the provisions of this article, all Board
decisions and township policy.
J.
To take all actions, conduct all proceedings and enforcement
in compliance with federal or state law and the Township Code.
K.
To apply the regulations of this article so as to
maximize the township's regulatory authority, with respect to basic
service rates and minimum service standards or other regulatory power,
under federal or state law.
A.
Regulation of basic service rates.
(1)
Basic service rates shall be subject to the township's
regulatory authority under federal or state law. Should the township
choose, in its discretion, to exercise such authority, the township
shall regulate basic service rates in accordance with the substantive
and procedural provisions of the federal or state law and any other
applicable law and/or regulation.
(2)
The township shall make any decision on the reasonableness
of current basic service rates and/or proposed rate changes pursuant
to the procedural and substantive provisions of the federal or state
law and any other applicable law and/or regulation.
(3)
In making a decision on the reasonableness of current
basic service rates or proposed rate changes, the township shall have
the authority to compel the production of proprietary information
from operators and, when requested to do so in writing by the operator,
the township shall protect the confidentiality of such information
to the extent required by law.
(4)
Upon the township's receipt of an operator's schedule
of basic service rates or a proposed rate change, the township shall
allow reasonable opportunity for the consideration of views of interested
parties consistent with, but not limited to, the procedures mandated
by the public participation provisions of the Sunshine Act, 65 P.S.
§ 280.1 et seq., and other applicable statutes ordinances
and regulations.
B.
Duties of operator.
(1)
Any and all operators which provide cable and other
telecommunication service within the township shall provide the township,
by delivery to the Township Manager and the Committee, the information
and documentation necessary to establish entitlement to any basic
service rate schedule and/or requested rate change. All applications
for approval of basic service rate schedules and requests for rate
changes and all information and documentation provided to the township
in support thereof shall comply with and be provided according to
the procedures and requirements of the federal or state law and this
article.
(2)
All submissions, petitions, applications and requests
and other filings made to the township, pursuant to federal or state
law and/or this article, shall be made either via first class mail,
postage prepaid, to the township, Attention: Township Manager, or
shall be hand-delivered to the Township Manager at the municipal building
during regular business hours. A copy shall also be provided for the
Committee.
(3)
Within 30 days of receiving written notification from
the township that the township has been certified by the FCC to regulate
rates for basic service, an operator shall file its schedule of basic
service rates with the township.
(4)
Operator shall comply with township orders concerning
proposed initial rates or proposed rate changes, which shall conform
with the requirements of appropriate federal or state law.
(5)
At least 30 days prior to changing its rates for the
basic service and following township approval, an operator shall notify
each subscriber of the rate change, including a description of the
basis for the change.
(6)
Beginning on the date an operator files a schedule
of rates or a proposed rate change with the township, the operator
shall publish a summary of the rates or rate changes in two or more
newspapers of general circulation in the township, in each case notifying
interested parties that they must submit written comments by a date
certain (within 15 days of the operator's filing with the township)
to the Manager at the township offices. The required summaries shall
give clear and reasonable notice of all new and changed rates.
C.
Board actions. In rendering its decisions, the Board
shall have the full authority granted to the township, pursuant to
the federal or state law and the Township Code, to order and compel
an operator to take any and all actions as the federal or state law
permits, including, without limitation:
(1)
Requiring an operator to implement a reduction in
basic service rates where necessary to bring rates into compliance
with the standards set forth in the federal or state law.
(2)
Prescribing a maximum reasonable rate for the basic
service rates after it determines that a proposed rate is unreasonable
and requiring the operator to not exceed such rate.
(3)
Requiring the operator to refund to subscribers that
portion of previously paid rates determined to be in excess of the
permitted basic service rates, unless the operator has submitted a
cost-of-service showing which the Board determines justifies the rate
charges as reasonable. Before ordering a refund, however, the township
shall give the operator notice and shall give the operator 15 days,
from the date such notice is given, to submit written comments to
the township. Any such refund order shall be subject to the limitations
contained in the federal or state law.
A.
Federal minimum customer service standards adopted.
It is the township's intention to enforce the minimum customer service
standards as set forth at 47 CFR 76.309 or, at the township's discretion,
such other or additional standards established by franchise agreement,
federal or state law or regulation or local ordinance, whether now
or hereafter enacted, to the extent that such other customer service
standards are not preempted by the federal or state law.
B.
Enforcement. The Manager, in conjunction with the
advice and assistance of the Committee, 90 days after giving notice
to the operator of the township's intent to enforce the minimum customer
service standards, shall have the authority and responsibility to
enforce these standards to the fullest extent permitted by the federal
or state law and in accordance with all substantive and procedural
requirements of the federal or state law, including, without limitation,
the power to:
(1)
Make any and all such orders and assess any and all
such penalties for violations of these standards as are permitted
by the federal or state law and the Township Code.
(2)
Ordering the operator to pay credits or refunds to
the subscribers to the operator's system.
(3)
Filing suit against an operator to compel specific
performance and/or enjoin action.
(4)
Conducting performance evaluations at the time of
renewal of the operator's franchise agreement.
A.
A written application shall be filed with the township
for grant of an initial franchise, renewal of a franchise or modification
of a franchise pursuant to this article. The township may require
the applicant to demonstrate in its application compliance with all
requirements of this article 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 § 88-18 of this article, 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 township for public inspection.
A.
A person may apply for an initial franchise by submitting
a request for issuance of a request for proposal ("RFP") and requesting
an evaluation of the resulting proposal pursuant to this section.
Upon receipt of a request for an RFP, and should the township determine
that cable and other telecommunication related needs and interests
of the community exist, the township 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 township,
providing the information and material set forth in this section.
The procedures, instructions and requirements set forth in the RFP
shall be followed by each applicant as if set forth and required herein.
The Township Manager, the Committee or their designee shall be authorized
to seek additional information from any applicant and to establish
deadlines for the submission of information.
B.
Notwithstanding the provisions of this section, a
person may apply for an initial franchise by submitting an unsolicited
proposal, providing the information and material set forth in this
section and requesting an evaluation of that proposal pursuant to
this section.
C.
A proposal for the grant of an initial franchise,
whether unsolicited or in response to an RFP, shall require 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 persons holding the largest interests 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; the extent of the
ownership interest of each of the aforementioned persons and any other
business affiliation and cable and other telecommunication system
ownership interest of each named person.
(2)
A demonstration of the applicant's technical ability
to construct and/or operate the proposed cable and other telecommunication
system, including identification of key personnel.
(3)
A demonstration of the applicant's legal qualifications
to construct and/or operate the proposed cable and other telecommunication
system, including but not limited to a demonstration that the applicant
meets following criteria:
(a)
The applicant must not have submitted an application
for an initial or renewal franchise to the township, which was denied
on the ground that the applicant failed to propose a system meeting
the 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 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 and other telecommunication
system.
(d)
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 or state law.
(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 township and the subscribers of the cable and other telecommunication
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)
An applicant shall not be issued a franchise
if it files materially misleading information in response to an RFP
issued by the township or intentionally withholds information that
the applicant lawfully is required to provide. An applicant shall
not be issued a franchise if an elected official of the township holds
a controlling interest in the applicant or an affiliate of the applicant.
Notwithstanding the foregoing, the township shall provide an opportunity
to an applicant to show that it would be inappropriate to deny it
a franchise due to such controlling interest, 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 and other telecommunication 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 and other telecommunication
system proposed.
(5)
A description of the applicant's prior experience
in cable and other telecommunication system ownership, construction
and operation and identification of communities in which the applicant
or any of its principals have or have had a franchise or license or
any interest therein.
(6)
Identification of the area of the township to be served
by the proposed cable and other telecommunication system, including
a description of the proposed franchise area's boundaries.
(7)
A detailed description of the physical facilities
proposed.
(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 and 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 basic, programming, optional, premium, per-channel or per-program
service or tier of service, installation, converters and other equipment
or services.
(10)
A demonstration of how the applicant's proposal will
reasonably meet the future cable and other telecommunication 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 township and how the proposal
will provide adequate public, educational and governmental access
channel capacity, facilities, financial support and program production
capability 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 and other
telecommunication service to an area already served by an existing
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 article.
(14)
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 or state law requirements,
as well as requirements under this article.
D.
In evaluating an application for a franchise, the
township 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
franchise granted by the township.
(2)
Whether the quality of the applicant's service under
any existing franchise in the township, 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 and other telecommunication
service.
(4)
Whether the applicant's proposal is reasonable to
meet the future cable and other telecommunication 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 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 affect on the
public right-of-way and private property which would be used by the
cable and other telecommunication 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 the township to meet the cable and other telecommunication
related needs and interests of the community; and, to the extent permissible
pursuant to the provisions of federal or state law, the comparative
superiority or inferiority of competing proposals.
(7)
Whether the applicant or an affiliate of the applicant
owns or controls any other cable and other telecommunication system
in the township or whether grant of the application may eliminate
or reduce competition in the delivery of cable and other telecommunication
service in the township.
E.
If the township 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 written acceptance of the applicant.
If the township 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 township 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 township
also may grant or deny a request for a franchise based on its review
of an application without further proceedings. The township may reject
any application which is incomplete or fails to respond to an RFP.
This article 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 township 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 township 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 township resolution or ordinance granting, renewing or modifying
the franchise or if the period is not extended by the township, the
franchise grant, renewal or modification will be null and void without
action by the township.
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 township activates or can activate the renewal process set forth in 47 U.S.C. § 546(a) through (c) (including, for example, if the provisions are repealed), the provisions of § 88-11 shall apply and a renewal request shall be treated in the same manner as a request for an initial franchise. The following additional requirements shall apply to all applicants seeking renewal after the effective date of this article where the procedures set forth in 47 U.S.C. § 546(a) through (c) are activated.
A.
Upon completion of the review and evaluation process
set forth in Section 626(a)(1) and (2) of the Cable Act, 47 U.S.C.
§ 546(a)(1) and (2), should that process be invoked, an
operator seeking renewal of the 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 township
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 township will
either:
(1)
Pass a resolution or ordinance agreeing to renew the franchise, subject to the negotiation of franchise terms mutually satisfactory and agreeable to the township and the franchisee and subject to written acceptance by the franchisee as provided for in § 88-11F of this article; 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 township
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) through (D) of the Cable Act, 47 U.S.C.
§ 546(c)(1)(A) through (D).
E.
If renewal of a franchise is denied, the township
may acquire ownership of the cable and other telecommunication 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 and
other telecommunication 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 township
does not purchase the cable and other telecommunication system or
approve or effect a transfer of the cable and other telecommunication
system to another person, the township 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 township may have the removal done at the former
franchisee's and/or surety's expense.
G.
Notwithstanding any other provisions of Subsection A through D of this section, an operator may submit a proposal for the renewal of a franchise pursuant to this subsection at any time and a franchising authority may, after affording the public adequate notice and opportunity for comments, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of Subsections A through D of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not effect action on a renewal proposal that is submitted in accordance with Subsections A through D.
H.
Notwithstanding any other provisions of this section,
any lawful action to revoke an operator's franchise for cause shall
not be negated by the subsequent initiation of renewal proceedings
by an operator.
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 the township 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 township 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 meets all federal
or state law requirements, as well as requirements under this article.
To be acceptable for filing, an application related to grant, renewal or modification of a franchise submitted after the effective date of this article shall be accompanied by a filing fee in the amount stated in § 88-18 of this article enumerating fees and fines.
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.
The township may grant one or more franchises,
and each such franchise shall be awarded in accordance with and subject
to the provisions of this article. This article 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.
A.
No person may construct or operate a cable and other
telecommunication system over, on or under public streets in the township
without a franchise granted by the township unless otherwise authorized
by law.
B.
Any person who occupies township streets or public
rights-of-way for the purpose of operating or constructing a cable
and other telecommunication system and who does not hold a valid franchise
from the township shall be subject to all provisions of this article,
including but not limited to its provisions regarding construction
and technical standards and franchise fees. In its discretion, the
township at any time may require such person to apply for a franchise
within 30 days of receipt of a written notice by the township 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 township and subject to the provisions
of this article.
A.
Fines.
(1)
In the event that an operator does not comply with
a decision, order and/or requirement made by the township pursuant
to this article, i.e., a violation, the township may assess a fine
against the operator as follows: $500 per violation. Each day that
a violation continues shall be a separate violation for which a separate
fine may be imposed. The operator shall pay all such fines within
30 days. In addition to the fines established hereby, the township
may pursue all of the remedies that it has under statute, law and/or
equity.
(2)
Prior to assessing fines for a violation under this
section, the township shall provide an operator written notice of
such violation and a fifteen-day period in which to cure the violation.
B.
Filing fees related to application for grant, renewal
or modification of a franchise. To be acceptable for filing, an application
submitted after the effective date of this article concerning an application
for grant, renewal or modification of franchise shall be accompanied
by a filing fee in the following amount, as appropriate:
(1)
For an initial franchise:
(a)
The request for issuance of an RFP: as set from
time to time by resolution of the Board of Supervisors.
(b)
The request for consideration of an unsolicited
proposal/application: as set from time to time by resolution of the
Board of Supervisors.
(c)
Township response to solicited or unsolicited
proposal/application: as set from time to time by resolution of the
Board of Supervisors.
(2)
Application for renewal of franchise: as set from
time to time by resolution of the Board of Supervisors.
(3)
Application for modification of a franchise: as set
from time to time by resolution of the Board of Supervisors.
