PRINTER'S NO. 4460
No. 2880 Session of 2006
INTRODUCED BY BUNT, PRESTON, STERN, FICHTER, BUXTON, ADOLPH,
ALLEN, ARMSTRONG, BALDWIN, BEBKO-JONES, BELARDI, BEYER,
BIRMELIN, BLACKWELL, BLAUM, CALTAGIRONE, CAPPELLI, CIVERA,
CLYMER, CORNELL, CORRIGAN, CRAHALLA, CREIGHTON, CRUZ, DALEY,
DALLY, DONATUCCI, J. EVANS, FABRIZIO, GANNON, GEIST, GEORGE,
GILLESPIE, GOOD, GRUCELA, GRUITZA, HANNA, HARHART, HARRIS,
HENNESSEY, HERMAN, HERSHEY, HESS, KAUFFMAN, W. KELLER,
KENNEY, KILLION, KIRKLAND, LaGROTTA, LEH, MAITLAND, McGEEHAN,
McGILL, McILHATTAN, McNAUGHTON, METCALFE, MICOZZIE, OLIVER,
PAYNE, PHILLIPS, QUIGLEY, RAYMOND, REED, REICHLEY, ROONEY,
SATHER, SCHRODER, SEMMEL, SHANER, SONNEY, STABACK, STAIRS,
STEIL, SURRA, J. TAYLOR, TIGUE, WANSACZ, WILLIAMS,
WOJNAROSKI, YEWCIC, YOUNGBLOOD, YUDICHAK AND ZUG,
JUNE 30, 2006
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JUNE 30, 2006
AN ACT
1 Amending Title 15 (Corporations and Unincorporated Associations)
2 of the Pennsylvania Consolidated Statutes, further providing
3 for duties of the Secretary of State; providing for State-
4 issued cable and video franchises and for municipal
5 regulation of franchise holders of State-issued certificates
6 of franchise authority; and making a related repeal.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Chapter 1 of Title 15 of the Pennsylvania
10 Consolidated Statutes is amended by adding a subchapter to read:
11 SUBCHAPTER E
12 STATE-ISSUED CABLE AND VIDEO FRANCHISES
13 Sec.
14 171. Short title of subchapter.
1 172. Declaration of policy.
2 173. Definitions.
3 174. State authorization to provide cable and/or video service.
4 175. Corporation Bureau responsibilities.
5 176. Application for State-issued certificate of franchise
6 authority.
7 177. Access to public rights-of-way.
8 178. Municipal regulation of franchise holders.
9 179. Payment and remittance of franchise fee.
10 180. Public, educational and governmental access channels.
11 181. Discrimination in provision of service prohibited.
12 182. Enforcement.
13 183. Applicability.
14 184. Severability.
15 § 171. Short title of subchapter.
16 This subchapter shall be known and may be cited as the Cable
17 Choice and Competition Act.
18 § 172. Declaration of policy.
19 The General Assembly finds and declares as follows:
20 (1) Current cable franchise requirements in this
21 Commonwealth have acted as a barrier to entry for new
22 facilities-based cable operators and have delayed the
23 development of viable competition in the cable market.
24 (2) Competition in providing cable and video services is
25 emerging with the convergence of preexisting and new
26 technologies for providing voice, video and data services
27 which results in increased investment, lower prices and
28 improved service offerings for consumers.
29 (3) Increased investment and the potential for
30 competition in the cable service and video service markets
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1 through the provisioning of new communications services and
2 deployment of advanced communications infrastructure,
3 including fiber-optic technologies, enhances economic
4 opportunities, public safety and the overall health and well-
5 being of the residents of this Commonwealth.
6 (4) State-issued franchises for the provision of cable
7 or video service will promote and facilitate the deployment
8 of advanced technologies and new services to all classes of
9 communities and protect this Commonwealth's ability to
10 compete in the national and international marketplace for
11 industry and jobs.
12 (5) Modifying existing cable service regulation through
13 the enactment of new standards and procedures which provide
14 consumers with expedited access to a competitive facilities-
15 based video programming market and also preserve municipal
16 authority to manage public rights-of-way, collect a franchise
17 fee up to 5% of gross revenues, administer public,
18 educational and governmental access channels and ensure
19 competitive services are delivered in a nondiscriminatory
20 manner is warranted in this Commonwealth.
21 § 173. Definitions.
22 The following words and phrases when used in this subchapter
23 shall have the meanings given to them in this section unless the
24 context clearly indicates otherwise:
25 "Bureau." The Corporation Bureau in the Department of State
26 or any successor entity within the department.
27 "Cable operator." Any person or group of persons who:
28 (1) provides cable service over a cable system and
29 directly or through one or more affiliates owns a significant
30 interest in such cable system; or
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1 (2) otherwise controls or is responsible for, through
2 any arrangement, the management and operation of such a cable
3 system, as set forth in section 522(5) of the Cable
4 Communications Policy Act of 1984 (Public Law 98-549, 47
5 U.S.C. § 522(5)).
6 "Cable service." The one-way transmission to subscribers of
7 video programming or other programming service, and subscriber
8 interaction, if any, which is required for the selection or use
9 of such video programming or other programming service, as set
10 forth in section 522(6) of the Cable Communications Policy Act
11 of 1984 (Public Law 98-549, 47 U.S.C. § 522(6)). This definition
12 does not include any video programming provided by a commercial
13 mobile service provider as defined in section 332(d) of the
14 Cable Television Consumer Protection and Competition Act of 1992
15 (Public Law 102-385, 47 U.S.C. § 332(d)).
16 "Cable system." Any facility consisting of a set of closed
17 transmission paths and associated signal generation, reception
18 and control equipment that is designed to provide cable service
19 which includes video programming and which is provided to
20 multiple subscribers within a community, as set forth in section
21 522(7) of the Cable Communications Policy Act of 1984 (Public
22 Law 98-549, 47 U.S.C. § 522(7)), but such term does not include:
23 (1) A facility that serves only to retransmit the
24 television signals of one or more television broadcast
25 stations.
26 (2) A facility that serves subscribers without using any
27 public rights-of-way.
28 (3) A facility of a common carrier which is subject, in
29 whole or in part, to the provisions of Title II of the
30 Communications Act of 1934 (47 U.S.C. § 201 et seq.), except
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1 that such facility shall be considered a cable system other
2 than for purposes of section 541(c) of the Cable
3 Communications Policy Act of 1984 (Public Law 98-549, 47
4 U.S.C. § 541(c)) to the extent such facility is used in the
5 transmission of video programming directly to subscribers,
6 unless the extent of such use is solely to provide
7 interactive on-demand services.
8 (4) An open video system that complies with section 573
9 of the Communications Act of 1934 (48 Stat. 1064, 47 U.S.C. §
10 573).
11 (5) Any facilities of any electric utility used solely
12 for operating its electric utility system.
13 "Franchise." An initial authorization, or renewal of an
14 authorization, issued by a franchising authority, regardless of
15 whether the authorization is designated as a franchise, permit,
16 license, resolution, contract, certificate, agreement or
17 otherwise, that authorizes the construction and operation of a
18 cable system in public rights-of-way.
19 "Franchise holder." A person who has received a State-issued
20 certificate of franchise authority but has not transferred or
21 terminated such franchise authorization, in accordance with the
22 provisions of this subchapter.
23 "Franchising authority." The bureau and municipalities which
24 are entitled to grant franchises and impose fees in accordance
25 with sections 522(10) and 542 of the Cable Communications Policy
26 Act of 1984 (Public Law 98-549, 47 U.S.C. §§ 522(10) and 542).
27 "Gross revenues."
28 (1) All revenue actually received by the franchise
29 holder, as determined in accordance with generally accepted
30 accounting principles, which is derived from the franchise
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1 holder's provision of cable service and/or video service,
2 including revenues from video-on-demand services, within the
3 jurisdictional boundaries of the municipality, including:
4 (i) All charges billed to subscribers for any and
5 all cable and/or video services provided by the franchise
6 holder.
7 (ii) Compensation received by the franchise holder
8 that is derived from the franchise holder's provision of
9 cable and/or video service with respect to commissions
10 that are paid to the franchise holder as compensation for
11 promotion or exhibition of any products or services over
12 the franchise holder's cable and/or video service subject
13 to paragraph (2)(iv).
14 (iii) A pro rata portion of all revenue derived by
15 the franchise holder or its affiliates pursuant to
16 compensation arrangements for advertising derived from
17 the franchise holder's provision of cable and/or video
18 service within the jurisdictional boundaries of the
19 municipality, subject to paragraph (2)(i). The allocation
20 shall be based on the number of subscribers in the
21 municipality divided by the total number of subscribers
22 in relation to the relevant regional or national
23 compensation arrangement. Advertising commissions paid to
24 third parties shall not be netted against advertising
25 revenues included in gross revenue.
26 (2) The term "gross revenues" does not include:
27 (i) Amounts not actually received, even if billed,
28 such as bad debt, refunds, rebates or promotional
29 discounts to subscribers or other third parties.
30 (ii) Revenues received by any affiliate of a
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1 franchise holder or any other person in exchange for
2 supplying goods or services used by the franchise holder
3 to provide cable and/or video service.
4 (iii) Revenues derived from services classified as
5 noncable or nonvideo service under Federal law,
6 including, without limitation, revenue received from
7 telecommunications services and information services, and
8 any other revenues attributed by the franchise holder to
9 noncable or nonvideo service in accordance with Federal
10 Communications Commission or Pennsylvania Public Utility
11 Commission rules, regulations, standards or orders.
12 (iv) Revenues paid by subscribers to home shopping
13 programmers directly from the sale of merchandise through
14 any home shopping channel offered as part of the cable
15 and/or video service, but not excluding any commissions
16 that are paid to the franchise holder as compensation for
17 promotion or exhibition of any products or services over
18 the franchise holder's cable and/or video service, such
19 as a home shopping or a similar channel.
20 (v) Revenues from the sale of cable and/or video
21 service for resale in which the reseller is required to
22 collect a fee similar to the franchise fee from the
23 reseller's customer.
24 (vi) Amounts billed to and collected from
25 subscribers to recover any tax, fee or surcharge imposed
26 by any governmental entity upon the franchise holder or
27 upon subscribers by a Federal, State, city or any other
28 governmental entity and required to be collected by the
29 franchise holder and remitted to the taxing entity. This
30 includes, but is not limited to, sales and use tax, gross
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1 receipts tax, excise tax, utility users tax, public
2 service tax, communication taxes and any other fee not
3 imposed by this subchapter.
4 (vii) Revenues from the sale of capital assets or
5 surplus equipment that is not used by the purchaser to
6 receive cable and/or video service from the seller of
7 such assets or surplus equipment.
8 (viii) Revenues from directory or Internet
9 advertising, including, but not limited to, yellow pages,
10 white pages, banner advertisement and electronic
11 publishing.
12 (ix) Revenues received as reimbursement by
13 programmers of marketing costs incurred by the franchise
14 holder for the introduction of new programming.
15 (x) Security deposits received from subscribers,
16 excluding security deposits applied to the outstanding
17 balance of a subscriber's account and thereby taken into
18 revenue.
19 "Incumbent cable operator." The cable operator serving the
20 largest number of cable subscribers in a particular municipal
21 franchise area on the effective date of this subchapter.
22 "Municipality." Cities of the first class, cities of the
23 second class, cities of the second class A, cities of the third
24 class, boroughs, incorporated towns, townships of the first
25 class, townships of the second class and home rule
26 municipalities within this Commonwealth.
27 "Person." An individual, partnership, association, joint
28 stock company, trust, corporation, government entity, limited
29 liability company or any other entity.
30 "Public rights-of-way." The areas on, below or above public
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1 roadways, highways, streets, public sidewalks, alleys, waterways
2 or utility easements in which a municipality has an interest.
3 "Video programming." Programming provided by, or generally
4 considered comparable to programming provided by, a television
5 broadcast station, as set forth in section 522(20) of the Cable
6 Communications Policy Act of 1984 (Public Law 98-549, 47 U.S.C.
7 § 522(20)).
8 "Video service." Video programming services provided through
9 wireline facilities located at least in part in the public
10 rights-of-way without regard to delivery technology, including
11 Internet protocol technology. The term does not include any
12 video programming provided by a commercial mobile service
13 provider as defined in section 332(d) of the Cable Television
14 Consumer Protection and Competition Act of 1992 (Public Law 102-
15 385, 47 U.S.C. § 332(d)) or a cable service provided by a cable
16 operator.
17 "Video service provider." An entity providing video service.
18 This term does not include a cable service provider.
19 § 174. State authorization to provide cable and/or video
20 service.
21 (a) General rule.--A person seeking to provide cable and/or
22 video service in this Commonwealth after the effective date of
23 this subchapter shall file an application for a State-issued
24 certificate of franchise authority with the bureau as required
25 by this section.
26 (b) Grandfather provision.--Any cable operator providing
27 cable service under a franchise agreement with a franchising
28 authority which existed prior to the effective date of this
29 subchapter is not subject to this section until the franchise
30 agreement expires at the end of its original or any mutually
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1 agreeable renewal term, or unless and until the franchising
2 authority and the cable operator mutually agree to terminate the
3 existing franchise agreement.
4 (c) Restrictions.--Nothing in this section shall restrict a
5 cable operator from applying to the bureau for a State-issued
6 certificate of franchise authority to provide cable and/or video
7 service in territories of this Commonwealth for which it does
8 not have an existing franchise agreement with a franchising
9 authority. For purposes of this section, a cable operator will
10 be deemed to have a franchise to provide cable service in the
11 jurisdiction of a specific franchising authority if any
12 affiliate of the cable operator maintains a franchise granted by
13 that franchising authority. The term "affiliate" in this section
14 shall mean any person that directly or indirectly through one or
15 more intermediaries, controls, is controlled by or is under
16 common control with the cable operator and that receives,
17 obtains or operates under a franchise from the franchising
18 entity for the provision of cable service through the grant of a
19 franchise, merger, sale, assignment, restructuring or any other
20 type of transaction.
21 (d) Franchising authority.--The bureau shall have the sole
22 franchising authority to issue State-issued certificates of
23 franchise authority to provide cable and/or video service under
24 this subchapter. Neither the bureau nor any municipality in this
25 Commonwealth may require a franchise holder to obtain any
26 separate or additional franchise or otherwise impose any fee or
27 other requirement, including, but not limited to, the regulation
28 of cable or video service rates, on any franchise holder as a
29 condition of providing cable or video service, except as
30 provided in this subchapter. The bureau may delegate its
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1 authority to issue a certificate of franchise authority to its
2 staff.
3 § 175. Corporation Bureau responsibilities.
4 (a) General rule.--The bureau shall assign existing
5 permanent staff of such legal, technical and other employees of
6 the bureau as may be required for the proper conduct of its
7 cable franchising responsibilities under this subchapter. The
8 powers and duties of the bureau shall not exceed those
9 prescribed in subsection (b) of this section and further
10 delineated in section 176 (relating to application for State-
11 issued certificate of franchise authority).
12 (b) Powers and duties.--The bureau shall be responsible for
13 establishing administrative procedures for the issuance of
14 State-issued certificates of franchise authority in accordance
15 with the provisions of this subchapter. The bureau's
16 administrative powers and duties shall be limited to the:
17 (1) Development of procedures to submit, review and
18 document applications filed with the bureau.
19 (2) Review of the initial submission and any updates of
20 the general description of the service area footprint to be
21 served or expanded, including, if applicable, any area within
22 a municipality to be served by an applicant.
23 (3) Determination and notice of incomplete applications.
24 (4) Approval of applications and amended applications
25 and issuance of certificates of franchise authority or denial
26 of such applications, within the periods designated under the
27 provisions of this subchapter.
28 (5) Issuance to applicants whose applications are
29 approved of certificates of franchise authority to provide
30 cable and/or video service in the service area footprint
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1 described in the application, and any subsequent updates
2 where applicable; to construct, upgrade, operate or maintain
3 a network capable of providing such service, except where
4 this grant is not required under section 176(f) (relating to
5 application for State-issued certificate of franchise
6 authority); and to use and occupy the public rights-of-way in
7 the delivery of that service.
8 (6) Development of procedures to review and document the
9 transfer or termination of State-issued certificates of
10 franchise authority.
11 § 176. Application for State-issued certificate of franchise
12 authority.
13 (a) General rule.--Any person desiring to provide cable
14 and/or video service in this Commonwealth after the effective
15 date of this subchapter shall file an application for a State-
16 issued certificate of franchise authority with the bureau as
17 required by this section.
18 (b) Contents of application.--Applications for a State-
19 issued certificate of franchise authority shall contain and be
20 limited to:
21 (1) A statement that the applicant has filed or will
22 timely file with the Federal Communications Commission all
23 forms required by that agency in advance of offering cable
24 and/or video service in this Commonwealth.
25 (2) A statement that the applicant agrees not to deny
26 access to cable service and/or video service to any group of
27 potential residential subscribers because of the income of
28 the residents in the local area in which such group resides
29 and agrees to comply with all other applicable Federal and
30 State statutes and regulations and all generally applicable
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1 municipal ordinances and regulations regarding the time,
2 place and manner of using and occupying public rights-of-way.
3 (3) A general description of the service area footprint
4 to be served, including, if applicable, any area within a
5 municipality to be served by the applicant. Such description
6 may be set forth on one or more maps. Descriptions of service
7 area footprints shall be updated by the applicant prior to
8 the expansion of cable and/or video service to a previously
9 undesignated service area and, upon such expansion, written
10 notice shall be given to the bureau of the new service area
11 to be served by the applicant. The State-issued franchise
12 area and any service area within the franchise area may
13 extend beyond the area or areas where the applicant has or
14 may have preexisting authority to occupy the public rights-
15 of-way.
16 (4) The location of the applicant's principal place of
17 business, the names of the applicant's principal executive
18 officers, and the name, address and telephone number of an
19 officer, general partner or other employee of the applicant
20 who will be responsible for ongoing communications with the
21 bureau.
22 (5) The name and location of the principal place of
23 business of the applicant's parent company, if any.
24 (6) The signature of an officer or general partner of
25 the applicant verifying the information set forth in the
26 application pursuant to 18 Pa.C.S. § 4904 (relating to
27 unsworn falsification to authorities).
28 (c) Notification.--Within ten business days after it
29 receives the application, the bureau shall:
30 (1) determine whether an application submitted pursuant
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1 to subsection (b) is incomplete; and
2 (2) if so, the bureau shall notify the applicant that
3 the application is incomplete and identify the information
4 that the bureau must receive from the applicant to make the
5 application complete.
6 (d) Application decision.--Within 15 business days after it
7 receives the completed application, the bureau shall approve the
8 application and issue a certificate of franchise authority to
9 the applicant or deny the application. The bureau may deny the
10 application only if the applicant has failed to state in the
11 application the information and representations required by
12 subsection (b). If the bureau denies the application, it must
13 specify with particularity the reason or reasons for the denial,
14 and the applicant may amend its application to cure any
15 deficiency. The bureau shall decide such amended application
16 within five business days of its submission to the bureau by the
17 applicant. An applicant may challenge a denial of its
18 application or amended application in any court of competent
19 jurisdiction. If the bureau fails to approve or deny an
20 application or amended application within the applicable time
21 period set forth in this subsection, then the application or
22 amended application shall be deemed approved by the bureau, and
23 the certificate of franchise authority shall be deemed to have
24 been issued to the applicant.
25 (e) Contents of certificate of franchise authority.--A
26 State-issued certificate of franchise authority shall contain:
27 (1) A grant of a franchise to provide cable and/or video
28 service in the service area footprint described in the
29 application and in any expanded service area footprint,
30 notice of which is to be provided to the bureau in a
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1 footprint update pursuant to subsection (b)(3); to occupy the
2 public rights-of-way in the delivery of that service; and to
3 construct, upgrade, operate or maintain a network capable of
4 providing such service, except where a network grant is not
5 required under subsection (f).
6 (2) A statement that the franchise grant is subject to
7 lawful operation of the cable and/or video service by the
8 applicant or its successor in interest.
9 (f) Preexisting authority.--An applicant having preexisting
10 authority to utilize public rights-of-way is required to obtain
11 a State-issued certificate of franchise authority prior to the
12 actual provision of cable and/or video service on a commercial
13 basis directly to subscribers. However, such an applicant is not
14 required to obtain a State-issued certificate of franchise
15 authority or any municipality authorization, except for being
16 subject to generally applicable municipal right-of-way
17 requirements, in order to construct, upgrade, operate or
18 maintain a network that is capable of providing cable and/or
19 video service in the future.
20 (g) Transferability.--The certificate of franchise authority
21 issued by the bureau is fully transferable to any successor in
22 interest to the applicant to which it is initially granted
23 without the approval or consent of the bureau or any
24 municipality. The applicant or its successor in interest shall
25 file a written notice of such transfer with the bureau and the
26 relevant municipalities within 14 business days after the
27 completion of the transfer. This notice shall include a
28 certification to the bureau that the successor in interest
29 agrees to be bound by the terms of the certificate of franchise
30 authority and is legally, financially and technically qualified
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1 to provide cable and/or video service.
2 (h) Termination.--The certificate of franchise authority
3 issued by the bureau may be terminated by the franchise holder
4 by submitting written notice of such termination to the bureau.
5 (i) Fees.--The bureau may charge a fee for filing an
6 application under this section. Any such fee shall not exceed
7 the bureau's actual costs to process and review the application.
8 § 177. Access to public rights-of-way.
9 (a) General rule.--Commonwealth municipalities shall allow a
10 franchise holder under this subchapter to construct, upgrade,
11 operate or maintain facilities capable of providing cable and/or
12 video service within public rights-of-way within the
13 jurisdiction of the municipality under the same terms and
14 conditions as applicable to public utility corporations under
15 applicable Federal and State law, including without limitation
16 15 Pa.C.S. § 1511(e) (relating to additional powers of certain
17 public utility corporations).
18 (b) Nondiscrimination.--No Commonwealth municipality shall
19 discriminate against a franchise holder regarding the
20 authorization or placement of a communications network in public
21 rights-of-way, access to a building or a utility pole attachment
22 term. All municipality public right-of-way requirements
23 applicable to cable operators and video service providers must
24 be competitively neutral, reasonable and nondiscriminatory.
25 (c) Construction permits and licenses.--In the exercise of
26 their lawful regulatory authority, municipalities shall promptly
27 process all valid and administratively complete applications of
28 a franchise holder for a permit or license to excavate, set
29 poles, locate lines, construct facilities, make repairs, affect
30 traffic flow or other similar approvals. The municipality shall
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1 make every reasonable effort not to delay or unduly burden the
2 franchise holder in the timely conduct of the holder's business.
3 (d) Expedited response or repair.--In the event of fire,
4 flooding, accident or other exigent circumstances necessitating
5 immediate response work or repair by the franchise holder, the
6 franchise holder may begin the repair or response work without
7 prior approval from the affected municipality, provided,
8 however, that the franchise holder shall notify the municipality
9 as promptly as reasonably possible after beginning the work and
10 shall subsequently obtain any approval required by a municipal
11 ordinance applicable to expedited response or repair work.
12 (e) Indemnity in connection with public rights-of-way.--A
13 franchise holder shall indemnify and hold a municipality and its
14 officers and employees harmless against any and all claims,
15 lawsuits, judgments, costs, liens, losses, expenses, fees,
16 including reasonable attorneys' fees and costs of defense,
17 proceedings, actions, demands, causes of action, liability and
18 suits of any kind and nature, including personal or bodily
19 injury or death, property damage or other harm for which
20 recovery of damages is sought, that is found by a court of
21 competent jurisdiction to be caused solely by the negligent act,
22 error or omission of the franchise holder or any agent, officer,
23 director, representative, employee, affiliate or subcontractor
24 of the franchise holder or their respective officers, agents,
25 employees, directors or representatives, while installing,
26 repairing or maintaining facilities in a municipality public
27 right-of-way. The indemnity provided by this subsection does not
28 apply to any liability resulting from the negligence of the
29 municipality or its officers, employees, contractors or
30 subcontractors. If the franchise holder and the municipality are
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1 found jointly liable by a court of competent jurisdiction,
2 liability shall be apportioned comparatively in accordance with
3 the laws of this Commonwealth without, however, waiving any
4 governmental immunity available to the municipality under State
5 law and without waiving any defenses of the parties under State
6 law. This subsection is solely for the benefit of the
7 municipality and the franchise holder and does not create or
8 grant any rights, contractual or otherwise, for or to any other
9 person.
10 (f) Written notice.--A franchise holder and a municipality
11 shall promptly advise the other in writing of any known claim or
12 demand against the franchise holder or the municipality related
13 to or arising out of the franchise holder's activities in a
14 municipal public right-of-way.
15 (g) Limitations on jurisdiction of bureau.--The bureau shall
16 have no jurisdiction to review regulations and ordinances
17 adopted by a municipality to manage the public rights-of-way.
18 § 178. Municipal regulation of franchise holders.
19 (a) Municipal powers regarding franchise holders.--A
20 municipality may:
21 (1) Exercise its nondiscriminatory police power with
22 respect to its public rights-of-way and a franchise holder's
23 use thereof, including subjecting franchise holders to
24 generally applicable nondiscriminatory permit requirements,
25 including the imposition of permit fees of general
26 applicability related to placing facilities in the public
27 rights-of-way.
28 (2) Receive and mediate cable and/or video service
29 quality complaints from a franchise holder's customers within
30 the municipality.
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1 (3) Require a franchise holder who is providing cable
2 and/or video service within the municipality to register with
3 the municipality, maintain a point-of-contact and provide
4 notice of any franchise authorization transfer to the
5 municipality within 14 business days after the completion of
6 the transfer.
7 (4) Establish reasonable guidelines regarding the use of
8 public, educational and governmental access channels within
9 the municipality.
10 (b) Limitation of municipal authority.--Commonwealth
11 municipalities shall not impose on a franchise holder any
12 requirement that:
13 (1) one or more business offices of the franchise holder
14 be located within the territory of the municipality;
15 (2) reports or other documents which are not required by
16 applicable Federal or State law and which are not related to
17 the franchise holder's use of the public rights-of-way be
18 filed by the franchise holder with the municipality;
19 (3) the franchise holder provide information to the
20 municipality concerning the capacity or other technical
21 characteristics of the franchise holder's facilities;
22 (4) the franchise holder's business records be subject
23 to inspection by the municipality, except to the extent
24 permitted under section 179(f) (relating to payment and
25 remittance of franchise fee);
26 (5) transfers of ownership or control of the franchise
27 holder's business be approved by the municipality, except
28 that a municipality may require that the franchise holder
29 maintain a current point-of-contact with the municipality and
30 that the franchise holder or its successor in interest
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1 provide notice of a transfer to the municipality within 14
2 business days after the completion of the transfer;
3 (6) the franchise holder who is self-insured under the
4 applicable provisions of Commonwealth law obtain insurance or
5 bonding for any activities within the territory of the
6 municipality, except that a self-insured franchise holder
7 shall provide substantially the same claims processing as an
8 insured franchise holder. A bond shall not be required from a
9 franchise holder for any work consisting of aerial
10 construction except that a reasonable bond may be required of
11 a franchise holder who cannot demonstrate a record of at
12 least four years' performance of work in any municipality's
13 public rights-of-way free of currently unsatisfied claims by
14 the municipality for damage to the public rights-of-way;
15 (7) the franchise holder provide the municipality with
16 an indemnification in connection with a municipality public
17 right-of-way that is broader than the indemnification
18 required in section 177(e) (relating to access to public
19 rights-of-way); or
20 (8) the franchise holder offer service to areas of the
21 municipality not included in the franchise holder's service
22 area footprint designated pursuant to section 176(b)(3)
23 (relating to application for State-issued certificate of
24 franchise authority).
25 § 179. Payment and remittance of franchise fee.
26 (a) General rule.--A franchise holder who offers cable
27 and/or video service within the jurisdiction of a municipality
28 shall calculate and remit to the municipality at the end of each
29 calendar year quarter a franchise fee as provided in this
30 section. The obligation to calculate and remit the franchise fee
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1 to a municipality shall begin immediately upon provision of
2 cable and/or video service within that municipality's
3 jurisdiction. However, the first remittance shall not be due
4 until the end of the first calendar year quarter that is at
5 least 180 days after the provision of cable and/or video service
6 began.
7 (b) Calculation of franchise fee.--The franchise fee shall
8 be calculated as a percentage of the franchise holder's gross
9 revenues, as defined in section 173 (relating to definitions),
10 equal to the franchise fee percentage applied by the
11 municipality to the incumbent cable operator in the
12 municipality, or when no incumbent cable operator exists, a
13 percentage agreed to by the franchise holder and the
14 municipality or, absent such agreement, a percentage prescribed
15 by the municipality in an ordinance, provided, however, that the
16 percentage shall not exceed 5%. After the expiration of the
17 incumbent cable operator's franchise, a municipality may, by
18 ordinance, change the percentage applied to the gross revenues
19 of the franchise holder and the incumbent cable operator,
20 provided that after such change the percentage shall not exceed
21 5% and shall apply equally to all cable operators and video
22 service providers operating within the municipality.
23 (c) Documentation.--No fee under this section will become
24 due until the municipality certifies and provides documentation
25 to the franchise holder supporting the percentage paid by any
26 incumbent cable operator serving the area within the
27 municipality's jurisdiction.
28 (d) Restrictions.--No municipality or any other political
29 subdivision of this Commonwealth may assess any additional fees
30 or charges or other remuneration of any kind from a franchise
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1 holder other than as set forth in this subchapter.
2 (e) Application to bundled services.--For purposes of this
3 section, in the case of a cable and/or video service that may be
4 bundled or integrated functionally with other services,
5 capabilities or applications, the franchise fee shall be applied
6 only to the gross revenues, as defined in this subchapter,
7 attributable to cable and/or video service, as reflected on the
8 books and records of the franchise holder in accordance with
9 generally accepted accounting principles and Federal
10 Communications Commission or Pennsylvania Public Utility
11 Commission rules, regulations, standards or orders, as
12 applicable.
13 (f) Remittance and review of franchise fee.--The franchise
14 fee shall be remitted to the applicable municipality quarterly,
15 within 45 days after the end of the quarter for the preceding
16 calendar quarter. Each payment shall be accompanied by a summary
17 explaining the basis for the calculation of the franchise fee.
18 Not more than once annually, a municipality may examine the
19 franchise holder's business records to the extent reasonably
20 necessary to ensure compensation in accordance with this
21 section. Each party shall bear the party's own costs of the
22 examination. Any claims by a municipality that compensation is
23 not in accordance with this section, and any claims for refunds
24 or other corrections to a remittance of a franchise holder, must
25 be made within three years and 45 days of the end of the quarter
26 for which compensation is remitted or three years from the date
27 of remittance, whichever is later. Either a municipality or a
28 franchise holder may, in the event of a dispute concerning
29 compensation under this section, bring an action in a court of
30 competent jurisdiction.
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1 (g) Fee itemized on bill.--A franchise holder may identify
2 the municipality and bill and collect the amount of the
3 franchise fee as a separate prorated line item on the regular
4 bill of each subscriber.
5 § 180. Public, educational and governmental access channels.
6 (a) General rule.--A franchise holder shall provide
7 municipalities it serves with capacity in its cable and/or video
8 service to allow public, educational and governmental (PEG)
9 access channels.
10 (b) Provisioning of access channels.--The franchise holder
11 shall designate a sufficient amount of capacity on its cable
12 and/or video service to allow the provision of a comparable
13 number of PEG access channels or hours of programming that the
14 incumbent cable operator has activated and provided within the
15 municipality under the terms of its franchise agreement as of
16 the effective date of this subchapter. If a municipality did not
17 have PEG access channels as of that date, the franchise holder
18 shall furnish to the municipality upon request up to three PEG
19 access channels for a municipality with a population of at least
20 50,000 and up to two PEG access channels for a municipality with
21 a population of less than 50,000. For the purposes of this
22 section, a PEG access channel is deemed to be and remain
23 activated if it is being utilized for PEG programming within the
24 municipality for at least eight hours per day and if such
25 programming is not broadcast more than once every eight hours.
26 The franchise holder shall have 12 months from the date the
27 municipality requests such PEG access channels to designate the
28 PEG access channel capacity, provided, however, that the 12-
29 month period shall be tolled by any period during which the
30 designation or provision of PEG access channel capacity is
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1 technically infeasible, including any failure or delay of the
2 incumbent cable operator to make adequate interconnection
3 available, as required by this section.
4 (c) Termination.--The franchise holder may cease providing
5 any PEG access channel provided pursuant to this section that is
6 not activated by the municipality, and except as provided in
7 this subsection, the channel may thereafter be programmed at the
8 franchise holder's discretion. If the municipality subsequently
9 certifies to the franchise holder a schedule of programming to
10 make the PEG access channel activated, the franchise holder
11 shall restore the PEG access channel for the use of the
12 municipality for as long as the municipality keeps the channel
13 activated.
14 (d) Channel responsibility.--The content and operation of
15 any PEG access channel provided pursuant to this section shall
16 be the responsibility of the municipality receiving the benefit
17 of such channel, and the franchise holder bears only the
18 responsibility for the transmission of such channel, subject to
19 technological constraints.
20 (e) Transmission of municipal programming.--The municipality
21 must ensure that all transmissions, content or programming to be
22 transmitted over a PEG access channel or facility by a franchise
23 holder are provided or submitted to the franchise holder in a
24 manner or form that is capable of being accepted and transmitted
25 by the franchise holder, without requirement for additional
26 alteration or change in the content by the franchise holder,
27 over the franchise holder's cable and/or video service. The
28 municipality's provision of PEG content to the franchise holder
29 shall constitute authorization for the franchise holder to carry
30 such content including, at the franchise holder's option, beyond
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1 the jurisdictional boundaries of the municipality.
2 (f) Interconnection.--Each franchise holder and incumbent
3 cable operator shall use reasonable efforts to interconnect
4 their facilities for the purpose of providing PEG access channel
5 programming. Interconnection may be accomplished by direct
6 cable, microwave link, satellite or other reasonable method of
7 connection. Franchise holders and incumbent cable operators
8 shall negotiate in good faith and incumbent cable operators may
9 not withhold interconnection of PEG channels. In the event a
10 franchise holder and an incumbent cable operator cannot reach a
11 mutually acceptable interconnection agreement, then the duty of
12 the franchise holder shall be discharged if the franchise holder
13 makes interconnection available to the channel originator at a
14 point on the franchise holder's network, as determined by the
15 franchise holder, which is within the relevant municipality.
16 (g) Identifying brands.--A franchise holder shall not be
17 required to interconnect for or otherwise to transmit PEG
18 content that is branded with the logo, name or other identifying
19 marks of another cable operator or video service provider. The
20 municipality may require a cable operator or video service
21 provider to remove its logo, name or other identifying marks
22 from PEG content that is to be made available through
23 interconnection to another provider of PEG access channel
24 capacity.
25 (h) Enforcement.--A court of competent jurisdiction shall
26 have jurisdiction to enforce any requirement under this section
27 or resolve any dispute regarding the requirements set forth in
28 this section, and no cable operator or video service provider
29 may be barred from the provision of cable and/or video service
30 or be required to terminate cable and/or video service as a
20060H2880B4460 - 25 -
1 result of such dispute or enforcement action.
2 § 181. Discrimination in provision of service prohibited.
3 (a) General rule.--No cable operator or video service
4 provider who has been granted a State-issued certificate of
5 franchise authority under this subchapter shall deny access to
6 cable service or video service to any group of potential
7 residential subscribers because of the income of the residents
8 in the local area in which such group resides.
9 (b) Determination of violations.--For purposes of
10 determining whether a franchise holder has violated subsection
11 (a), cost, low household density, distance and technological or
12 commercial impracticability limitations must be taken into
13 account and the franchise holder shall have a reasonable time to
14 deploy its service. Use of alternative technologies that provide
15 comparable content, service and functionality shall not be
16 considered a violation of this section. The inability to serve a
17 potential residential subscriber because a franchise holder is
18 prohibited from placing its own facilities in a building or
19 property shall not be found to be a violation of this section.
20 This section may not be construed as authorizing any build-out
21 requirements on a franchise holder.
22 (c) Customer service requirements.--Notwithstanding any
23 other provision of law, a franchise holder shall comply with
24 customer service requirements set forth at 47 CFR § 76.309(c)
25 (relating to customer service obligations) until there are two
26 or more providers, including the franchise holder but excluding
27 direct-to-home satellite service, offering cable and/or video
28 service within the jurisdiction of the relevant municipality
29 where the franchise holder has been authorized to serve.
30 § 182. Enforcement.
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1 The exclusive remedy for enforcing the provisions of this
2 subchapter shall be an action in a court of competent
3 jurisdiction brought by either the municipality or the district
4 attorney of the county in which the municipality is located, or
5 the Commonwealth Attorney General on its own behalf or on behalf
6 of the bureau. At least 60 days before bringing such an action,
7 the municipality, district attorney or Attorney General shall
8 serve the franchise holder with a notice setting out the alleged
9 violation and stating that an action may be brought unless the
10 franchise holder corrects the alleged violation, or enters into
11 a binding agreement to correct the violation, within the 60-day
12 notice period. The notice shall contain a sufficiently detailed
13 description of the alleged violation to enable the franchise
14 holder to make a specific response.
15 § 183. Applicability.
16 The provisions of this subchapter are intended to be
17 consistent with the Cable Communications Policy Act of 1984
18 (Public Law 98-549, 47 U.S.C. § 521 et seq.) and nothing in this
19 subchapter shall be interpreted to prevent a voice provider,
20 cable operator, video service provider or municipality from
21 seeking clarification of its rights and obligations under
22 Federal law. In the event that any cable operator or video
23 service provider obtains relief through judicial, administrative
24 or executive action from any obligation imposed under this
25 subchapter, or from any obligation in a franchise agreement that
26 gives rise to an obligation of another cable operator or video
27 service provider under this subchapter, all other cable
28 operators and video service providers shall be deemed to be
29 relieved of their obligations under this subchapter within the
30 same geographic area and to the same extent.
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1 § 184. Severability.
2 The provisions of this subchapter are severable. If any
3 provision of this act or its application to any person or
4 circumstance is held invalid, the invalidity shall not affect
5 other provisions or applications of this subchapter which can be
6 given effect without the invalid provision or application, and
7 to this end, the provisions of this subchapter are declared to
8 be severable.
9 Section 2. Repeals are as follows:
10 (1) The General Assembly declares that the repeal under
11 paragraph (2) is necessary to effectuate the addition of 15
12 Pa.C.S. Ch. 1 Subch. E.
13 (2) The act of July 6, 1995 (P.L.264, No.37), known as
14 the Video Programming Municipal Tax Authorization Act, is
15 repealed insofar as it is inconsistent with the provisions of
16 this act.
17 Section 3. This act shall take effect immediately.
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