A.
Application requirement. A written application shall
be filed with the Town for grant of an initial franchise; renewal of a franchise
under 47 U.S.C. § 546(a) to (g); or modification of a franchise
agreement pursuant to this chapter or a franchise agreement. An applicant
shall demonstrate in its application compliance with all requirements of this
chapter, any existing franchise agreement held by the applicant and all applicable
laws.
B.
Acceptability for filing. To be acceptable for filing, a signed original of the application shall be submitted together with 12 copies. The Town Manager may, in combination with neighboring communities, establish a joint application procedure, provided that any such procedure conforms to the standards of this chapter. The application must be accompanied by the required application filing fee as set forth in § 46-17, 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.
Applications available for public inspection. All applications
accepted for filing shall be made available by the Town for public inspection
in the office of the Town Clerk during normal business hours. Upon receipt
of an application, the Town Clerk shall provide prompt public notice that
the application or proposal is available for public inspection at the municipal
offices during regular business hours for a period of at least three weeks.
D.
Town may waive. The Town Council may waive any of the provisions of this Article III by resolution, where application of the rule would cause manifest injustice, except for those provisions required by state or federal law. Any waiver granted shall explain the basis for the waiver and shall not unduly discriminate against any applicant.
A.
Application. A person may apply for an initial franchise by submitting an application containing the information required in § 46-15 and requesting an evaluation of that application pursuant to Subsection B of this section. Prior to evaluating that application, the Town shall conduct such reasonable investigations as are necessary to determine whether the application satisfies the standards set forth in Subsection B of this section and may seek additional applications.
B.
Factors in evaluating application for franchise or renewal
of existing franchise. In evaluating an application for a franchise, the Town
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 Town.
(2)
Whether the quality of the applicant's service under
an existing franchise in the Town, 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 Town 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 as part of Subsection
D(4), the applicant will provide adequate public, education, and governmental
access channel capacity, facilities, or financial support, consistent with
community needs and interests.
(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 the applicant and its proposed facilities 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 Town or whether grant of the
application may eliminate or reduce competition in the delivery of cable service
in the Town.
C.
Town determination. If the Town finds that it is in the
public interest to issue a franchise after 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 Town denies a franchise, it
will issue within 30 days a written decision explaining why the franchise
was denied. Prior to deciding whether or not to issue a franchise, the Town
may hold one or more public hearings or implement other procedures under which
comments from the public on an applicant may be received. The Town 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.
This chapter is not intended and shall not be interpreted to grant any applicant
or existing grantee standing to challenge the issuance of a franchise to another,
except as provided by applicable state or federal laws or regulations.
D.
Joint review. The Town may elect to delegate review of an application to a consortium of local governments or a formally constituted interlocal body of which the Town is a member. Any such entity shall review the application in accordance with the standards of Subsection B of this section and make a recommendation to the Town. In such a case, the Town Council shall review the recommendation of the designated body and approve or reject it in accordance with the terms of Subsection C of this section.
Applications for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 427 U.S.C. § 546. If neither a grantee nor the Town activates in a timely manner or can activate the renewal process set forth in 47 U.S.C. § 546 (a) through (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. § 546(h), the provisions of § 46-13 shall apply and a renewal request shall be treated the same as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:
A.
Issuance of RFP. If the provisions of 47 U.S.C. § 546(a)
through (g) are properly invoked, the Town may issue an RFP after conducting
a proceeding to review the applicant's past performance and to identify future
cable-related community needs and interests. The Town Administrator, or the
Administrator's designee, shall establish deadlines and procedures for responding
to the RFP, may seek additional information from the applicant, and shall
establish deadlines for the submission of that additional information.
(1)
Following receipt of the application responding to that
RFP (and such additional information as may be provided in response to requests),
the Town will determine that the franchise should be renewed or make a preliminary
assessment that the franchise should not be renewed. That determination shall
be in accordance with the time limits established by the Cable Act. The preliminary
determination shall be made by order.
(2)
If the Town determines that the franchise should not
be renewed and the applicant that submitted the renewal application notifies
the Town, either in its RFP response or within 10 working days of the preliminary
assessment, that it wishes to pursue any rights to any administrative proceeding
it has under the Cable Act, then the Town shall commence an administrative
proceeding after providing prompt public notice thereof, in accordance with
the Cable Act.
(3)
If the Town decides preliminarily to grant renewal, it
shall prepare a final franchise agreement that incorporates, as appropriate,
the commitments made by the applicant in the renewal application. If the applicant
accepts the franchise agreement, and the final agreement is ratified by the
Town, the franchise shall be renewed. If the franchise agreement is not so
accepted and ratified within the time limits established by 47 U.S.C. § 546(c)(1),
renewal shall be deemed preliminarily denied and an administrative proceeding
commenced if the applicant that submitted the renewal application requests
it within 10 days of the expiration of the time limit established by 47 U.S.C.
§ 546(c)(1).
B.
Administrative hearing. If an administrative hearing
is commenced pursuant to 47 U.S.C. § 546(c), the applicant's renewal
application shall be evaluated considering such matters as may be considered
consistent with federal law. The following procedures shall apply:
(1)
The Town Council shall, by order, appoint an administrative
hearing officer or officers (referred to hereafter as "hearing officer").
The Town Council may appoint itself as hearing officer.
(2)
The hearing officer shall establish a schedule for proceeding
which allows for documentary discovery and interrogatory responses, production
of evidence, and cross-examination of witnesses. Depositions shall not be
permitted unless the party requesting the deposition shows that documentary
discovery and interrogatory responses will not provide it an adequate opportunity
to require the production of evidence necessary to present its case. The hearing
officer shall have the authority to require the production of evidence as
the interests of justice may require, including to require the production
of evidence by the applicant that submitted the renewal application and any
entity that owns or controls or is owned or controlled by such applicant directly
or indirectly. The hearing officer may issue protective orders to the extent
permitted under applicable state law. Any order may be enforced by a court
of competent jurisdiction or by imposing appropriate sanctions in the administrative
hearing.
(3)
The hearing officer may conduct a prehearing conference
and establish appropriate prehearing procedures. Intervention by non-parties
is not authorized except to the extent permitted by the Cable Act.
(4)
The hearing officer may require the Town and the applicant
to submit prepared testimony prior to the hearing. Unless the parties agree
otherwise, the applicant shall present evidence first and the Town shall present
evidence second.
(5)
Any reports or the transcript or summary of any proceedings
conducted pursuant to 47 U.S.C. § 546(a) shall for purposes of the
administrative hearing be regarded no differently than any other evidence.
The Town and the applicant must be afforded full procedural protection regarding
evidence related to these proceedings, including the rights to refute any
evidence introduced in those proceedings or sought to be introduced by the
other party. Both shall have the opportunity to submit additional evidence
related to issues raised in the proceeding conducted pursuant to 47 U.S.C.
§ 546(a).
(6)
Following completion of any hearing, the hearing officer
shall require the parties to submit proposed findings of fact with respect
to the matters that the Town is entitled to consider in determining whether
renewal should be granted. Based on the record of the hearing, the hearing
officer shall then prepare written findings with respect to those matters
and submit those findings to the Town Council and to the parties (unless the
hearing officer is the Town Council, in which case the written findings shall
constitute the final decision of the Town).
(7)
If the hearing officer is not the Town Council, the parties
shall have 30 days from the date the findings are submitted to the Town Council
to file exceptions to those findings. The Town Council shall thereafter issue
a written decision granting or denying the application for renewal, consistent
with the requirements of the Cable Act and based on the record of such proceedings.
A copy of that decision of the Town Council shall be provided to the applicant.
(8)
The proceeding shall be conducted with due speed.
(9)
In conducting the proceedings, and except as inconsistent
with the foregoing, the hearing officer will follow the Maine Administrative
Procedure Act[1] or the successor statutes thereto unless otherwise governed by
federal law or regulations. The hearing officer may request that the Town
Council adopt additional procedures and requirements as necessary in the interest
of justice.
[1]
Editor's Note: See 5 M.R.S.A. § 8001 et seq.
C.
Informal renewal applications. This section does not
prohibit any grantee from submitting an informal renewal application pursuant
to 47 U.S.C. § 546(h), which application may be granted or denied
in accordance with the provisions of 47 U.S.C. § 546(h).
D.
Consistency with Cable Act. The provisions of this chapter
shall be read and applied so that they are consistent with Section 626 of
the Cable Act, 47 U.S.C. § 546.
If issued by the Town, an RFP for the grant of a renewal franchise under
47 U.S.C. § 546(c) shall require, and any application for an initial
or renewal franchise [other than an application submitted pursuant to 47 U.S.C.
§ 546(h)] shall contain, at a minimum, the following information:
A.
Identification of applicant and its ownership and control.
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 controlling affiliates
of the applicant and all persons with five-percent 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.
B.
Statement of applicant's technical ability. A demonstration
of the applicant's technical ability to construct and/or operate the proposed
cable system, including identification of key personnel.
C.
Statement of applicant's legal qualifications. 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 Town 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 licensing
decision were finally resolved adversely to the applicant, within one year
preceding the submission of the application.
(2)
The applicant must not have had any cable television
franchise validly revoked by any licensing authority within three years preceding
the submission of the application.
(3)
The applicant must have the necessary authority under
Maine law to operate a cable system within Maine.
(4)
The applicant shall not be issued a franchise if it may
not hold the franchise as a matter of federal law. An applicant must have
or show that it is qualified to obtain any necessary federal approvals or
waivers required to operate the system proposed.
(5)
The applicant shall not be issued a franchise if, at
any time during the 10 years preceding the submission of the application,
the application was convicted of any act or omission of such character that
the applicant cannot be relied upon to deal truthfully with the Town and subscribers
of the cable system or to comply substantially 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)
The applicant shall not be issued a franchise if it files
materially misleading information in its application or intentionally withholds
information that the applicant lawfully is required to provide.
(7)
The applicant shall not be issued a franchise if an elected official of the Town holds a controlling interest in the applicant or an affiliate of the applicant. Notwithstanding the foregoing, the Town shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under Subsection C(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 and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of cable television systems.
D.
Statement of applicant's financial qualifications. 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.
E.
Description of prior experience. A description of the
applicant's prior experience in the 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, provided that an applicant that holds a franchise for the
Town 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.
F.
Identification of area to be served. Identification of
the area of the Town to be served by the proposed cable system, including
a description of the proposed franchise area's boundaries. All grantees shall
be bound and required to serve the same areas within the Town.
G.
Description of physical facilities. A detailed description
of the physical facilities proposed, including channel capacity, technical
design, performance characteristics, head end, and access facilities.
H.
Description of construction of proposed system. 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.
I.
Proposed rate structure. The proposed rate structure,
including projected charges for each service tier, installation, converters,
and other equipment or services.
J.
Demonstration of how future community needs and interests
will be met. 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 Town 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. The Town
Manager may, in coordination with neighboring communities, establish procedures
for conducting a joint needs assessment.
K.
Pro forma financial projections. 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.
L.
Identification of area of overbuild. If the applicant
proposes to provide cable service to an area already served by an existing
cable grantee, the identification of the area where the overbuild would occur,
the potential subscriber density in the area that would encompass the overbuild,
the ability of the public rights-of-way and other property that would be used
by the applicant to accommodate an additional system, and assurances that
any existing facilities will not be disturbed by the proposed overbuild, except
as necessary for make ready work.
M.
Other information. Any other information as may be reasonably
necessary to demonstrate compliance with the requirements of this chapter.
N.
Information requested by Town. Information that the Town
may reasonably request of the applicant that is relevant to the Town's consideration
of the application.
O.
Certification of accuracy. 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, in a format approved by the Town.
An application for modification of a franchise agreement shall include,
at a 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 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 Town 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.
A.
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 to cover costs incidental to the awarding or enforcement
of the franchise, as appropriate:
B.
The Town may also elect to share the costs of reviewing
an application with other communities served by the system of which an existing
or proposed cable system in the Town is a part. In that case, the filing fees
shown above shall not apply and shall be replaced with combined filing fees
for all communities with whom the Town is sharing expenses. The combined filing
fees shall be $500 per Town for an initial grant, a modification, or a renewal.
Combined filing fees shall be prorated among the participating communities
on the basis of a number of residents in each community as of the most recent
United States Census or allocated according to some other mutually agreeable
method. Application fees for franchise renewals may be increased as necessary
to recover the Town's additional cost of conducting any hearings required
under 47 U.S.C. § 546(a) through (g), if the grantee has invoked
that procedure in its renewal application.
An applicant shall be notified in writing at least 10 calendar days
in advance 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 Town 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 applications 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. Nothing herein shall be deemed to prevent or limit
communities in which the applicant has requested grant or renewal of a franchise
from holding joint public hearings in a location reasonably accessible to
residents of each community which is the subject thereof.
