It shall be unlawful for any person to construct,
install or operate a cable television system in Queen Anne's County
within any public right-of-way without a properly granted franchise
issued pursuant to the provisions of this chapter.
Any franchise granted by the County shall grant
to a grantee the nonexclusive right and privilege to erect, construct,
operate and maintain in, upon, and along, across, above, over and
under the public rights-of-way, now in existence and as may be created
or established during a franchise term, any poles, wires, cable, underground
conduits, manholes, and other television conductors and fixtures necessary
for the maintenance and operation of a cable system to provide cable
service within a franchise area. A franchise granted by the County
does not expressly or implicitly authorize a grantee to provide service
to, or install a cable system on, private property without the owner's
consent (except for use of compatible easements pursuant to the Cable
Act, or to use publicly or privately owned conduits or any other public
property without a separate agreement with the owners thereof).
A.
Upon adoption of any franchise agreement and execution
thereof by a grantee, the grantee agrees to be bound by all the terms
and conditions contained in this chapter and any amendments thereto,
unless otherwise provided in the franchise agreement.
B.
Any grantee also agrees to provide all services specifically
set forth in its application, if any, and to provide cable service
within the confines of its franchise area; and by its acceptance of
a franchise, a grantee specifically grants and agrees that its application
is thereby incorporated by reference and made a part of the franchise.
In the event of a conflict between the application and the provisions
of this chapter, that provision which provides the greatest benefit
to the County, in the opinion of the County, shall prevail.
Any franchise to provide cable service shall
be valid within all the unincorporated territorial limits of Queen
Anne's County, Maryland, unless otherwise specified in the franchise
agreement.
A.
A franchise and the rights, privileges and authority
granted shall take effect and be in force as set forth in the franchise
agreement and shall continue in force and effect for a term of no
longer than 10 years. Such franchise shall be nonexclusive and revocable.
B.
Within 15 days after the County's decision to grant
a franchise, the intended grantee shall file with the County its unconditional
acceptance of the franchise and its promise to comply with and abide
by all its provisions, terms and conditions.
Franchise renewals shall be conducted in accordance
with applicable law, including, but not necessarily limited to, the
Cable Act, as amended. Grantor and grantee, by mutual consent, may
enter into renewal negotiations at any time during the term of the
franchise.
A.
In accepting a franchise, a grantee shall acknowledge
that its rights thereunder are subject to the police powers of the
County to adopt and enforce general public local laws pursuant to
applicable law and necessary to the health, safety and welfare of
the public. The grantee shall agree to comply with all applicable
laws, ordinances, policies, codes, rules and regulations enacted or
adopted by the County pursuant to such power.
B.
Any conflict between the provisions of this chapter
and any other present or future lawful exercise of the County's police
powers shall be resolved in favor of the latter, except that any such
exercise that is not of general application in Queen Anne's County,
or applies exclusively to the grantee or cable television systems,
which contain provisions inconsistent with the grantee's franchise
agreement, shall prevail only if upon such exercise the County finds
an emergency exists constituting a danger to health, safety, property
or general welfare or such exercise is mandated by law.
C.
In the event that the State or federal government
discontinues preemption in any area of cable communications over which
it currently exercises jurisdiction in such manner as to expand rather
than limit municipal regulatory authority, the County may, if it so
elects, adopt rules and regulations in these areas to the extent permitted
by law.
The County shall have the right, during the
term of a franchise, to install and maintain free of charge upon the
poles of a grantee any wire or pole fixtures that do not unreasonably
interfere with the cable television system operations of the grantee.
The County shall indemnify and hold harmless, to the extent permitted
by law, the grantee from any claim that might arise due to or as a
result of such usage.
Costs to be borne by an initial grantee shall
include, but shall not be limited to, any reasonable charges incidental
to the awarding or enforcing of an initial grantee's franchise, all
costs of publications of notices prior to any public meeting provided
for pursuant to this chapter, and any costs not covered by application
fees but incurred by the County in its study, preparation of proposal
documents, evaluation of all applications, and examinations of the
applicant's qualifications. Any payments made to the County pursuant
to this section shall not be considered franchise fees.
A.
Any person desiring an initial franchise for a cable
television system, the renewal of a franchise, or a modification of
a franchise shall file a written application with the County. The
application shall be in such form, and under such terms and conditions,
as determined by the County.
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 any required application filing fee, conform
to any applicable request for proposals (RFP), and contain all required
information. All applications shall include the names and addresses
of persons authorized to act on behalf of all applicants with respect
to the application.
C.
All applications accepted for filing shall be made
available by the County for public inspection.
D.
A person may apply for an initial franchise or a franchise renewal by submitting an application containing the information required in Subsection E. Upon receipt of such an application, the County may either: evaluate the application pursuant to Subsection D(3), conducting such investigations as it deems necessary; or issue a request for proposals (RFP), after conducting, if necessary, a proceeding to identify the future cable-related needs and interests of the community. Any such RFP shall be mailed to the person requesting its issuance and made available to any other interested person. The RFP may contain a proposed franchise agreement.
(1)
An applicant shall respond to a RFP by filing an application within the time directed by the County, providing the information and material set forth in Subsection E. Each applicant shall follow the procedures, instructions, and requirements set forth in the RFP. Any applicant that has already filed materials pursuant to Subsection D(2) herein need not refile the same materials with its RFP response, but must amplify its applications to include any additional or different materials required by the REP. The County or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(2)
Notwithstanding the provisions of this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in Subsection E and requesting an evaluation of that application pursuant to Subsection D(3). Prior to evaluating that application, the County may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in Subsection D(3) and may seek additional applications.
(3)
In evaluating an application for a franchise or a
renewal thereof, the County shall consider, among other things, the
following factors:
(a)
The extent to which the applicant has substantially
complied with the applicable law and the material terms of any existing
franchise for the County;
(b)
Whether the quality of the applicant's service
under any existing franchise in Queen Anne's County, including signal
quality, response to customer complaints, billing practices, but without
regard to the mix and quality of cable services or other services
provided over the system, has been reasonable in light of the 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 application satisfies any minimum
requirements established by the County 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;
(e)
Whether, to the extent not considered under Subsection D(3)(d), the applicant will provide adequate PEG access channel capacity, facilities, or financial support.
(f)
Whether issuance of a franchise is warranted
in the public interest considering the immediate and future effect
on the public rights-of-way and private property that would be used
by the cable system, including the extent to which installation or
maintenance as planned would require replacement of property or involve
disruption of property, public services, or use of the public rights-of-way;
the effect of granting a franchise on the ability of cable to meet
the cable-related needs and interests of the community; and the comparative
superiority or inferiority of competing applications;
(g)
What effects a grant of the franchise may have
on competition in the delivery of cable service in Queen Anne's County.
(4)
If the County finds that it is in the public interest
to issue or renew a franchise considering the factors set forth in
this section, and subject to the applicant's entry into an appropriate
franchise agreement, it shall proceed with the grant or renewal of
franchise. If the County denies a franchise or renewal thereof after
consideration of the factors set forth in this section, it will issue
a written decision explaining the denial. The County also may grant
or deny a request for a franchise or renewal thereof based on its
review of an application without further proceedings and may reject
any application that is incomplete or fails to respond to an RFP.
This chapter is not intended and shall not be interpreted to grant
any applicant or existing franchisee standing to challenge the issuance
of a franchise to another person.
(5)
Prior to rendering a final decision whether or not
to issue or renew a franchise pursuant to this section, the County
shall provide public notice of the franchise application; the County
may hold one or more public hearings or implement other procedures
under which comments from the public and/or the applicant on an application
may be received; and in the event of a renewal application where the
franchise may not be renewed, the County shall provide a preliminary
assessment to the franchisee seeking renewal and shall afford that
applicant an opportunity to respond to the preliminary assessment.
E.
Required information in RFP for initial franchise.
(1)
An RFP for the grant of an initial franchise shall
require, and any such application shall contain, at a 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 10 largest holders of an ownership interest in
the applicant and 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; and all
officers and directors of the applicant and its affiliates.
(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.
(d)
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)
A description of the applicant's prior experience
in cable system ownership, construction, and operation, and identification
of communities in which the applicant or any of its principals have,
or have had, a cable franchise or any interest therein.
(f)
Identification of the area of Queen Anne's County
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, headend, 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, installation, converters, and all other
proposed equipment or service.
(j)
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 County,
and how the applicant will provide adequate PEG access channel capacity,
facilities, or financial support to meet the community's needs and
interests.
(k)
Pro forma financial projection 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 the applicant proposes to provide cable service
to an area already served by an existing cable franchisee, the identification
of the area where the overbuild would occur and the ability of the
public rights-of-way and other property that would be used by the
applicant to accommodate an additional system.
(m)
Any other information that may be reasonably
necessary to demonstrate compliance with the requirements of this
chapter.
(n)
Any additional information that the County may
request of the applicant that is relevant to the County'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 application meets all federal
and state law requirements.
(2)
The County may, at its discretion and upon request
of an applicant, waive in writing the provision of any of the information
required by this section.
F.
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 formas;
(3)
A statement whether the modification is sought pursuant
to § 625 of the Cable Act, and, if so, a demonstration that
the requested modification meets the standards set forth therein;
(4)
Any other information that the applicant believes
is necessary for the County to make an informed determination on the
application for modification; and
(5)
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.
G.
An applicant shall be notified of any public hearings
held in connection with the evaluation of its application and shall
be given an opportunity to be heard.
H.
Filing fees. A nonrefundable application fee of $3,000 shall accompany any initial franchise application. A nonrefundable application fee of $1,000 shall accompany any renewal application or modification application, unless otherwise stipulated by the County. In addition, the County may require an applicant to reimburse the County for its reasonable out-of-pocket expenses in considering the application, including consultants' fees. Payments made by a grantee hereunder shall not be deemed to be franchise fees within the meaning of the Cable Act, and such payment shall not be deemed to be involuntary payment chargeable against, or part of, the compensation to be paid to the County by the grantee pursuant to § 29-13 of this chapter and applicable provisions of a franchise agreement. The purpose of the application fees is to cover costs incidental to processing and evaluating the application or enforcement of the franchise.
A.
For the reason that the streets and public rights-of-way
of the County to be used by a grantee in the operation of its cable
system within the boundaries of Queen Anne's County are valuable public
properties acquired and maintained by the County at great expense
to its taxpayers, and that the grant of a franchise to a grantee is
a valuable right without which a grantee would be required to invest
substantial capital in right-of-way costs and acquisitions, the grantee
shall pay to the County an amount equal to 5% of the grantee's gross
revenue, unless otherwise provided for in the franchise agreement.
If the statutory five-percent limitation on franchise fees is raised
or the federal statute deletes the franchise fee limitation entirely,
then the franchise fee may be subject to renegotiation.
B.
This payment shall be in addition to any other tax,
fee or assessment of general applicability or payment owed to the
County by a grantee.
C.
The franchise fee and any other costs or penalties
assessed shall be payable quarterly on a calendar year basis to the
County, and a grantee shall file a complete and accurate verified
statement of all gross revenues within 45 days after the quarter as
established between the County and the grantee.
D.
The County shall have the right, no more frequently
than biannually, to inspect a grantee's income records and the right
to audit and to recompute any amounts determined to be payable under
this chapter upon 30 days' prior notice to the grantee. Any additional
amount due to the County as a result of the audit shall be paid within
30 days following written notice to the grantee by the County, which
notice shall include a copy of the audit report. Unless required by
law, the County shall not disclose to any third party (other than
its financial advisors in their capacity as such) any financial information
or other information that would reasonably be regarded as confidential
that the County gains access to in connection with the provisions
of this subsection. A grantee's income records, when made available
to the County, shall not include subscriber specific information.
E.
If any franchise fee payment or recomputed amount, cost or penalty,
is not made on or before the applicable dates heretofore specified,
interest shall be charged daily from such date at the rate of 10%
per annum and a grantee shall reimburse the County for any reasonable
additional expenses and costs incurred by the County by reason of
the delinquent payment(s).
[Amended 2-14-2017 by Ord. No. 16-26]
F.
If cable services subject to the franchise fee required under this § 29-13 are provided to subscribers in conjunction with non-cable services and the total cost of the bundle reflects a discount from the aggregate retail prices of the services contained therein, then the franchise fee shall be applied to the retail price of the cable services in the bundle reduced by no more than a proportionate share of the overall discount.
[Added 2-14-2017 by Ord.
No. 16-26]
