(a) Written Application.
(1) A written application shall be filed with the Borough for grant of an initial franchise; renewal of a franchise under either the formal or informal procedures in accordance with Section 626 of the Cable Act, 47 USC 546; or modification of a franchise agreement pursuant to this chapter or a franchise agreement. The Borough may require the applicant to demonstrate in its application compliance with all requirements of this chapter and all applicable laws.
(2) To be acceptable for filing, a signed original of the application shall be submitted, together with ten copies. The application must be accompanied by the required application filing fee as set forth in division (e) of this section, 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.
(3) All applications accepted for filing shall be made available by the Borough for public inspection.
(b) Application for Grant of an Initial Franchise.
(1) A person may apply for an initial franchise by submitting a proposal and requesting an evaluation of that proposal pursuant to division (b)(4) of this section.
(2) The proposal for the grant of an initial franchise shall contain, at minimum, the following information:
A. Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of the ten 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.
B. A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel.
C. 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 grounds that the application failed to serve the public interest, or as to which any challenges to such franchising decision were finally resolved adversely to the applicant, within three years preceding the submission of the application.
2. The applicant must not have had any cable television franchise validly revoked by any franchising authority within three years preceding the submission of the application.
3. The applicant must have the necessary authority under Pennsylvania law to operate a cable system.
4. 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 ten 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 anti-competitive acts, fraud, racketeering, or other similar conduct.
6. An applicant shall not be issued a franchise if it files materially misleading information with 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.
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 divisions (b)(2), (3) or (5) of this section 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.
D. A statement prepared by a duly authorized financial officer regarding the applicant's financial ability to complete the construction and operation of the cable system proposed.
E. 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.
F. 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.
G. A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, head-end, and access facilities.
H. 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. The proposed rate structure, including projected charges for each service tier, installation, converters, and other equipment or services.
J. 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.
K. 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. If an applicant proposes to provide cable service to an area already served by an existing 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.
M. Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter or that bears on the applicant's qualifications to operate a cable system within the Borough.
N. Information that the Borough may request of the applicant that is relevant to the Borough's consideration of the application.
O. 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.
(3) The Borough shall review each application for a franchise to determine whether the public interest would be served by granting the same, and shall consider in particular:
A. 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.
B. Whether the quality of the applicant's service under an existing franchise in Swarthmore, including signal quality, response to customer complaints, and billing practices, has been reasonable in light of community needs and interests of the communities served.
C. Whether the applicant has the financial, technical, and legal qualifications to provide cable service.
D. 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.
E. Whether, to the extent not considered as part of division (b)(3)D., the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support.
F. Whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property which would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting a franchise on the ability of cable to meet the cable-related needs and interests of the community; and, to the extent permissible pursuant to the provisions of the cable act, the comparative superiority or inferiority of competing proposals.
G. 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.
H. Any other factors that reasonably bear on the applicant's qualifications to operate a cable system in the Borough.
(4) 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. 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.
(5) 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 the 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.
(c) Renewal Proceedings. The Borough shall conduct renewal proceedings in accordance with Section 626 of the Cable Act, 47 USC 546, as amended. If Section 626 of the Cable Act is repealed or for any other reason is inapplicable to a renewal proceeding, such proceeding shall be conducted as a proceeding on a request for initial franchise in accordance with division (b) of this section.
(d) Application for Modification of a Franchise. An application for modification of a franchise agreement shall include, at minimum, the following information:
(1) The specific modification requested;
(2) 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 forma;
(3) A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 USC 545, and if so, a demonstration that the requested modification meets the standards set forth in 47 USC 545;
(4) Any other information that the applicant believes is necessary for the Borough to make an informed determination on the application for modification; and
(5) An affidavit or declaration or 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.
(e) Filing Fees. 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:
(1) For an initial franchise: $5,000.00
(2) For renewal of a franchise: As specified in the franchise agreement
(3) For modification of a franchise agreement: $1,000.00
(f) Public Hearings. An applicant shall be notified of any public hearing held in connection with the evaluation of its proposal and shall be given an opportunity to be heard.
(Ord. 920. Passed 7-14-97; Ord. 938. Passed 7-12-99.)