[Ord. No. 5045 § 1, 8-14-2008]
No person shall construct, install,
maintain or operate on, above or within any public right-of-way any
equipment or facilities for the distribution of television signals,
radio signals or other intelligences, either analog or digital, over
a system to any subscriber unless a franchise or video service authorization
authorizing the use of the public rights-of-way has first been obtained
pursuant to the provisions of Section 67.2679, RSMo., and thereafter
only while such person is legally operating under the terms and provisions
of such franchise or authorization.
[Ord. No. 5045 § 1, 8-14-2008; Ord.
No. 7895, 12-21-2023]
A.
The City shall collect a video service provider fee equal to not
more than five percent (5%) of the gross revenues charged to each
customer of a video service provider that is providing video service
in the City. The video service provider fee shall apply equally to
all video service providers within the City.
B.
Beginning August 28, 2023, franchise entities are prohibited from
collecting a video service provider fee in excess of four and one-half
percent (4 1/2%) of such gross revenues. Beginning August 28,
2024, franchise entities are prohibited from collecting a video service
provider fee in excess of four percent (4%) of such gross revenues.
Beginning August 28, 2025, franchise entities are prohibited from
collecting a video service provider fee in excess of three and one-half
percent (3 1/2%) of such gross revenues. Beginning August 28,
2026, franchise entities are prohibited from collecting a video service
provider fee in excess of three percent (3%) of such gross revenues.
Beginning August 28, 2027, and continuing thereafter, franchise entities
are prohibited from collecting a video service provider fee in excess
of two and one-half percent (2 1/2%) of such gross revenues.
C.
Except as otherwise expressly provided in Sections 67.2675 to 67.2714,
RSMo., neither a franchise entity nor the City shall demand any additional
fees, licenses, gross receipt taxes, or charges on the provision of
video services by a video service provider and shall not demand the
use of any other calculation method.
D.
Not more than once per calendar year after the date that the incumbent cable operator's franchise existing on August 28, 2007, expires or would have expired if it had not been terminated pursuant to Sections 67.2675 to 67.2714, RSMo., and no more than once per calendar year after the video service provider fee was initially imposed, the City may, upon ninety (90) days' notice to all video service providers, elect to adjust the amount of the video service provider fee subject to State and Federal law, but in no event shall such fee exceed the calculation defined in Subsections (A) and (B) of this Section.
E.
The video service provider fee shall be paid to the City on or before the last day of the month following the end of each calendar quarter and shall be calculated as a percentage of gross revenues, as defined under Section 635.010 hereof. Any payment made pursuant to Section 635.440 hereof shall be made at the same time as the payment of the video service provider fee.
[Ord. No. 5045 § 1, 8-14-2008]
A.
The City entity shall have the authority
to audit any video service provider, which provides video service
to subscribers within the City, not more than once per calendar year.
B.
A video service provider shall, upon request
of the City, make available at the location where such records are
kept in the normal course of business for inspection by the City all
records pertaining to gross revenues received from the provision of
video services provided to consumers located within the City.
C.
Any expenses incurred by the City in conducting
an audit of an entity holding a video service authorization shall
be paid by the City.
D.
Any suit with respect to a dispute arising out of or relating to the amount of the video service provider fee allegedly due to the City under Section 635.040 shall be filed by the City seeking to recover an additional amount alleged to be due, or by a video service provider seeking a refund of an alleged overpayment, in a court of competent jurisdiction within two (2) years following the end of the quarter to which the disputed amount relates. Any payment that is not challenged by the City within two (2) years after it is paid or remitted shall be deemed accepted in full payment by the City.
E.
The City shall not employ, appoint or retain
any person or entity for compensation that is dependent in any manner
upon the outcome of an audit of a holder of video service authorization
including, without limitation, the audit findings or the recovery
of fees or other payment by the City. A person may not solicit or
accept compensation dependent in any manner upon the outcome of any
such audit including, without limitation, the audit findings or the
recovery of fees or other payment by the City or video service provider.
F.
A video service provider shall not be required
to retain financial records associated with the payment of the video
service provider fee for longer than three (3) years following the
end of the quarter to which such payment relates, unless the City
has commenced a dispute regarding such payment in accordance with
this Section.
[Ord. No. 5045 § 1, 8-14-2008]
A.
Annual Report. All video service providers
shall file with the City Administrator an annual report prepared by
a certified public accountant retained by such provider showing the
total gross revenues for such provider's preceding fiscal year. Such
annual report shall also be accompanied by a written report to City,
containing an accurate statement of the computation of the payment
amount, which shall be certified as true by a Financial Officer of
such provider.
B.
Acceptance By City. No acceptance of any
payment by the City shall be construed as a release or as an accord
and satisfaction of any claim the City may have for further or additional
sums payable as a video service provider fee under this Chapter or
for the performance of any other obligation of a video service provider.
[Ord. No. 5045 § 1, 8-14-2008]
A.
Authority Granted. Any video service authorization
granted shall give to such provider the right and privilege to construct,
erect, operate, modify and maintain in, upon, along, above, over and
under the public rights-of-way such towers, antennas, cables, electronic
equipment and other network appurtenances necessary for the operation
of a video service network in the City; provided, that the exercise
of such rights and privileges shall not interfere with the use of
such public rights-of-way by the City and such others as designated
by the City to use such public rights-of-way.
B.
Provider Subject To Other Laws, Police
Power. A video service provider shall at all times be subject to and
shall comply with all applicable Federal, State and local laws. Such
a provider shall at all times be subject to all lawful exercise of
the Police power of the City including, without limitation, all rights
the City may have under 47 U.S.C. Section 552. Nothing in this Chapter
shall be deemed to waive the requirements of the various codes and
ordinances of the City regarding permits, zoning, fees to be paid
or manner of construction, installation, operation, maintenance or
repair of a video service network within the public right-of-way.
C.
Privileges Subordinated. Any privilege
claimed under a video service authorization by a provider in any public
right-of-way or other public property shall be subordinate to any
other lawful occupancy of the public rights-of-way or other public
property.
D.
Transfer Of City's Rights, Powers Or Duties.
Any right or power in, or duty impressed upon, any officer, employee,
department or board of the City shall be subject to transfer by the
City to any other officer, employee, department or board of the City.
E.
Obligations Of Provider. A video service
authorization granted does not relieve a provider of any additional
obligations it may have in obtaining pole or conduit space from any
department of the City, utility company or from others maintaining
utilities in public rights-of-way.
F.
Acts At Provider's Expense. Any act that
a provider is or may be required to perform under this Chapter, a
franchise agreement or applicable law shall be performed at the provider's
expense, unless expressly provided to the contrary in this Chapter,
the franchise agreement or applicable law.
G.
Eminent Domain. Nothing herein shall be
deemed or construed to impair or affect, in any way or to any extent,
the City's rights of eminent domain to the extent to which they may
apply to any video service network.
[Ord. No. 5045 § 1, 8-14-2008]
An entity holding a video service
authorization shall provide notice to the City at least ten (10) days
before commencing video service in the City.
[Ord. No. 5045 § 1, 8-14-2008]
A.
A franchise is a privilege that is in the
public trust and personal to the franchise holder. A holder's obligations
under its franchise involve personal services whose performance involves
personal credit, trust and confidence in a holder. No transfer of
a franchise, cable system or of control of the same (including, but
not limited to, transfer by forced or voluntary sale, merger, consolidation,
receivership or any other means) shall occur unless prior application
is made by a holder to the City and the City's prior written consent
is obtained, pursuant to this Chapter and the franchise agreement,
and only then upon such terms and conditions as the City deems necessary
and proper. Any such transfer without the prior written consent of
the City shall be considered to impair the City's assurance of due
performance. The granting of approval for a transfer in one instance
shall not render unnecessary approval of any subsequent transfer.
B.
Application.
1.
A franchise holder shall promptly
notify the City Administrator of any proposed transfer. If any transfer
should take place without prior notice to the City Administrator,
a holder will promptly notify the City that such a transfer has occurred.
2.
At least one hundred twenty (120)
calendar days prior to the contemplated effective date of a transfer,
a franchise holder shall submit to the City Administrator an application
for approval of the transfer. Such an application shall provide complete
information on the proposed transaction, including details on the
legal, financial, technical and other qualifications of the transferee
and on the potential impact of the transfer on subscriber rates and
service. At a minimum, the following information shall be included
in the application, provided that, a holder is not required to duplicate
information that it submits to the City Administrator to comply with
its obligations under Federal or State law:
a.
All information and forms required
under Federal law or the equivalent of such forms if no longer required
by Federal law;
b.
The following information as to ownership
and applicant shall also be required and contained as part of the
application:
(1)
Name and address of
the applicant and identification of the ownership and control of the
applicant, including: the names and addresses of the ten (10) largest
holders of an ownership interest in the applicant and affiliates of
the applicant, and all persons with ten percent (10%) 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
system ownership interest of each named person.
(2)
A demonstration of the
applicant's technical ability to construct and/or operate the proposed
system, including identification of key personnel.
(3)
A demonstration of the
applicant's legal qualifications to construct and/or operate the proposed
system, including but not limited to a demonstration that the applicant
meets the following criteria:
(a)
The applicant must have
the necessary authority under Missouri law to operate a system.
(b)
The applicant must have
the necessary authority under Federal law to hold the franchise and
operate the system. An applicant must have, or show that it is qualified
to obtain, any necessary Federal franchises or waivers required to
operate the system proposed.
(c)
If the City has lawfully
denied an applicant's previous request for an initial or renewal franchise,
that applicant may not apply for an initial or renewal franchise again
until at least three (3) years have elapsed since the date of such
denial.
(d)
The applicant must not
have had any franchise validly revoked by any franchising authority
within three (3) years preceding the submission of the application.
(e)
The applicant shall
not be issued a franchise if, at any time during the ten (10) years
preceding the submission of the application, the applicant was convicted
of any act or omission of such character that the applicant cannot
be relied upon to deal truthfully with the City and the subscribers
of the 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.
(f)
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.
(g)
The applicant shall
not be issued a franchise if an elected official of the City holds
a controlling interest in the applicant or an affiliate of the applicant.
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Notwithstanding the foregoing, the
City shall provide a reasonable opportunity to an applicant to show
that it would be inappropriate to deny it a franchise 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 the system.
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(4)
A demonstration of the
applicant's financial ability to complete the construction and operation
of the system proposed.
(5)
A description of the
applicant's prior experience in system ownership, construction, and
operation, and identification of communities in which the applicant
or any of its principals have, or have had, a franchise or any interest
therein.
(6)
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.
(7)
Any additional information
that the City may request of the applicant that is relevant to the
City's consideration of the application.
c.
Any contracts or other documents
that relate to the proposed transaction, and all documents, schedules,
exhibits or the like referred to therein;
d.
Any shareholder reports or filings
with the Securities and Exchange Commission that discuss the transaction;
e.
Other information necessary to provide
a complete and accurate understanding of the financial position of
the system before and after the proposed transfer;
f.
Complete information regarding any
potential impact of the transfer on subscriber rates and service;
g.
A brief summary of the proposed transferee's
plans for at least the next five (5) years regarding line extension,
plant and equipment upgrades, channel capacity, expansion or elimination
of services, and any other changes affecting or enhancing the performance
of the system; and
h.
A list of all the proposed transferor's
obligations under the franchise, and a statement given under oath
identifying which obligations have been met and in what manner they
have been met.
C.
For the purposes of determining whether it shall consent to a transfer, the City or its agents may inquire into all qualifications of the prospective transferee and such other matters as the City may deem necessary to determine whether the transfer is in the public interest and should be approved, denied or conditioned as provided under Section 635.120(D). A franchise holder and any prospective transferees shall assist the City in any such inquiry, and if they fail to do so, the request for a transfer may be denied.
D.
Determination By City. In making a determination
as to whether to grant, deny or grant subject to conditions an application
for a transfer of a franchise, the City may consider, without limitation,
the legal, financial and technical qualifications of the transferee
to operate the system; the proposed purchase price and consideration
to be paid for a franchise; any potential effects of the transfer
on subscriber rates or services; whether a franchise holder is in
compliance with its franchise and this Chapter and, if not, the proposed
transferee's commitment to cure such non-compliance; whether the transferee
owns or controls any other system in the City, and whether operation
by the transferee may eliminate or reduce competition in the delivery
of video service in the City; and whether operation by the transferee
or approval of the transfer would adversely affect subscribers, the
public or the City's interest under this Chapter, a franchise or other
applicable law.
E.
Transferee's Agreement. No application
for a transfer of a franchise shall be granted unless the transferee
agrees in writing that it will abide by and accept all terms of this
Chapter and the franchise and that it will assume the obligations,
liabilities and responsibility for all acts and omissions, known and
unknown, of the previous grantee under this Chapter and the franchise
for all purposes, including renewal.
F.
Approval Does Not Constitute Waiver. Approval
by the Board of a transfer does not constitute a waiver or release
of any of the rights of the City under this Chapter or a franchise
agreement, whether arising before or after the date of the transfer.
G.
Exception For Intra-Company Transfers. Notwithstanding the foregoing, a franchise agreement may provide that transfers to affiliates of a franchise holder shall be excepted from the requirements of Section 635.120(B) where (i) the affiliate is wholly-owned and managed by an entity that will guarantee the performance of the affiliate under a franchise; and (ii) the transferee affiliate:
1.
Notifies the City Administrator of the transfer at least sixty (60) days before it occurs and at that time provides the agreements and warranties required by this Section 635.120, describes the nature of the transfer, and submits complete information describing who will have direct and indirect ownership and control of the system after the transfer;
2.
Warrants that it has read, accepts
and agrees to be bound by each and every term of the franchise agreement
and related amendments, regulations, ordinances and resolutions then
in effect;
3.
Agrees to assume all responsibility
for all liabilities, acts and omissions, known and unknown, of its
predecessor franchise holder(s) for all purposes, including renewal;
4.
Agrees that the transfer shall not
permit it to take any position or exercise any right which could not
have been exercised by its predecessor franchise holder(s);
5.
Warrants that the transfer will not
substantially increase the financial burdens upon or substantially
diminish the financial resources available to a grantee (the warranty
to be based on comparing the burdens upon and resources that will
be available to the transferee compared to its predecessors) or otherwise
adversely affect the ability of a holder to perform;
6.
Warrants that the transfer will not
in any way adversely affect the City or subscribers (including by
increasing rates);
7.
Notifies the City that the transfer
is complete within five (5) business days of the date the transfer
is completed; and
8.
Agrees that the transfer in no way
affects any evaluation of its legal, financial or technical qualifications
that may occur under the franchise or applicable law after the transfer
and does not directly or indirectly authorize any additional transfers.
H.
Anything to the contrary contained in this Chapter 635 notwithstanding, a video service authorization is fully transferable to any successor-in-interest to the holder whether such successor-in-interest arises through merger, sale, assignment, restructuring, change of control or any other type of transaction. A notice of transfer shall be promptly filed with the Public Service Commission and the City upon completion of such transfer, but the City shall have no authority to review or require approval of any transfer of a video service authorization, regardless of whether the transfer arises through merger, sale, assignment, restructuring, change of control or any other type of transaction. A video service provider shall, upon receipt of a video service authorization, maintain current point-of-contact information and immediately provide notice to the City of a transfer of same within a reasonable time.
[Ord. No. 5045 § 1, 8-14-2008]
A video service provider shall comply
with all Federal Communications Commission requirements involving
the distribution and notification of emergency messages over the emergency
alert system applicable to cable operators. A video service provider
other than an incumbent cable operator serving a majority of the residents
within the City shall comply with this Section by December 31, 2007.
[Ord. No. 5045 § 1, 8-14-2008]
A video service authorization shall
expire upon notice to the Public Service Commission by the holder
of a video service authorization that it will cease to provide video
service under such authorization.
