(a) Application
requirements.
Any person, seeking a franchise for a cable
system, that does not currently have a franchise shall file a letter
with the city secretary providing the name, address and telephone
number of the applicant and the name and title of the applicant’s
representative who is responsible for such application. A copy of
such letter will be provided by the city secretary to the city manager
and the city attorney. Within 20 business days, the city attorney
will mail a request for information to the applicant requesting information
and records that are considered reasonable and necessary to evaluate
the ability of the applicant on a legal, financial and technical basis
to provide the services for which the franchise is requested. It shall
also include a request for information, records and maps to specifically
identify the services, construction and location of the proposed lines
and facilities. When the requested information has been provided in
a complete and accurate manner, in response to the initial request
for information, as well as any reasonable and necessary follow-up
inquires, and the applicant has paid any required fees, the applicant
shall have complied with this application requirement and the city
shall commence its consideration of the application.
(b) Determination.
After the city attorney has prepared a package of information
for review, which shall include the application of the applicant,
the city shall commence proceedings which afford the public and the
applicant appropriate notice and an opportunity to comment on the
proposed franchise. One (1) or more public hearings shall be held
within ninety (90) days of the submission of the complete application.
Within ninety (90) days after the conclusion of all such public hearings,
and based upon an evaluation of the application, the hearings and
other information that the grantor may deem relevant, a final determination
shall be made. The city council shall approve any franchise agreement
only in the form of an ordinance after two (2) readings as required
by the city charter. No provisions in this article shall be deemed
or construed to require the city council to grant a franchise.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-153)
A franchise may be renewed by the city upon application of a
grantee on a written application form furnished by the city and pursuant
to the procedure established herein in accordance with the then-applicable
law.
(1) Initial
proceedings.
During the six-month period which begins
with the thirty-sixth month before franchise expiration, the city
may on its own initiative, and shall at the request of a grantee,
commence proceedings which afford the public appropriate notice and
participation for the purpose of:
(A) Identifying the future cable-related community needs and interests;
(B) Reviewing the performance of the grantee under the franchise during
the then-current franchise term; and
(C) Hearing any interested persons during said meeting and determining
whether or not the grantee did reasonably comply with the terms and
conditions imposed by this article and the franchise.
(2) Proposal.
(A) Upon completion of a proceeding under subsection (1) of this section,
the grantee seeking renewal of a franchise may, on its own initiative
or at the request of the city, submit a proposal for renewal.
(B) Any such proposal shall contain such material as the city may require
reasonably, including proposals for an upgrade of the cable system.
(C) The city may establish a date by which such proposal shall be submitted.
(3) Determination.
(A) Upon submittal by the grantee of a proposal to the city for the renewal
of a franchise, the city shall provide public notice of such proposal
and, during the four-month period which begins on the completion of
any proceedings under subsection (1) of this section, renew the franchise
or issue a preliminary assessment that the franchise should not be
renewed. If the city determines that the grantee has been in reasonable
compliance with the terms and conditions imposed by this article and
the franchise, the council may renew the grantee’s franchise
for a period not to exceed the period established in the franchise
under such terms and conditions as may be mutually agreed in a new
franchise agreement. The city shall have the right to recoup from
the grantee those direct expenses above normal administration costs
incurred pursuant to renewal of the franchise.
(B) If the city issues a preliminary assessment that the franchise should
not be renewed, then at the request of the grantee, or on its own
initiative, the city shall commence an administrative proceeding,
after providing public notice of such proceedings, in accordance with
subsection (3)(C) of this section, to consider whether:
(i) The grantee has substantially complied with the material terms of
the existing franchise and with applicable law;
(ii) The quality of the grantee’s cable service, including signal
quality, response to consumer complaints, and billing practices, but
without regard to the mix or quality or level of cable services or
other services provided over the cable system, has been reasonable
in light of community needs;
(iii)
The grantee has the financial, legal, and technical ability
to provide the cable services, facilities, and equipment as set forth
in the grantee’s proposal; and
(iv) The grantee’s proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the cost of meeting
such needs and interests.
(C) In any proceeding under subsection (3)(B) of this section, the grantee
shall be afforded notice and the grantee and the city, or its designee,
shall be afforded fair opportunity for full participation, including
the right to introduce evidence, including evidence related to issues
raised in the proceeding under subsection (1) of this section, to
require the production of evidence, and to question witnesses. A transcript
shall be made of any such proceeding.
(D) At the completion of a proceeding under this subsection, the council
shall adopt an ordinance granting or denying the proposal for renewal
based upon the information presented during the proceeding, and transmit
a copy of such ordinance to the grantee. Such ordinance shall state
the reasons for the decision.
(4) Denial.
Any denial of a proposal for renewal shall be based on one (1) or more adverse findings made with respect to the factors described in subsections (i) through (iv) of subsection
(3)(B), pursuant to the record of the proceeding under subsection
(3)(B) of this section. The city may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection
(3)(B)(i) or on events considered under subsection
(3)(B)(ii) unless the city has provided the grantee with notice and the opportunity to cure, or in any case in which it is documented that the city has waived its right to object, or has effectively acquiesced.
(5) Notwithstanding the provisions of subsections
(1) through
(4) of this section, a grantee may submit a proposal for the renewal of a franchise pursuant to this section at any time, and the city may, after affording the public adequate notice and an opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections
(1) through
(4) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections
(1) through
(4) of this section.
(6) For
the purposes of this section, the term “franchise expiration”
means the date of the expiration of the term of a franchise as provided
under the franchise.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-154)
(a) Applications
shall be accompanied by a nonrefundable application fee of one thousand
dollars ($1,000.00) payable to the order of the “City of Odessa,”
which amount shall be used by the city to offset direct expenses incurred
in the franchising and evaluation procedures, including, but not limited
to, staff time and consulting assistance.
(b) An applicant to whom the council grants a nonexclusive franchise, in addition to the nonrefundable fee specified hereinabove, shall pay to the city, within thirty (30) days of receipt of notice of the amount, an amount set by the council, or its designee, which shall represent the remaining out-of-pocket costs incurred by the city in granting the franchise and not defrayed by fees forthcoming from the provisions of subsection
(a) of this section. Such amount shall not exceed ten thousand dollars ($10,000).
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-155)
(a) A
franchise granted under this article shall be a privilege to be held
in personal trust by a grantee. It shall not be assigned, transferred,
sold or disposed of, in whole or in part, by voluntary sale, merger,
consolidation or otherwise or by forced or involuntary sale, without
prior consent of the council expressed by ordinance, and then only
on such reasonable conditions as may therein be prescribed. The city
is hereby empowered to take legal or equitable action to set aside,
annul, revoke or cancel a franchise or the transfer of a franchise,
if such transfer is not made according to the procedures set forth
in this article, or is not in the best interest of the city or the
public.
(b) Any
sale, transfer or assignment shall be made by a bill of sale or similar
document, an executed copy of which shall be filed in the office of
the city secretary within thirty (30) days after any such sale, transfer
or assignment. The city secretary shall furnish copies to the city
manager and city attorney. The council shall not withhold its consent
unreasonably; provided, however, the proposed assignee agrees to comply
with all provisions of this article and the franchise, and provided
that the assignee is able to provide proof of financial responsibility,
in the form of an audited financial statement prepared by an independent
certified public accountant or a certified public accounting firm
for its most recently completed fiscal year, with legal qualifications
and technical capability satisfactory to the council.
(c) No such consent shall be required for a transfer in trust, mortgage or other instrument of hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed seventy-five (75) percent of the fair market value (as defined in section
4-15-2) of the property used by a grantee in the operation of its cable system, prior consent of the council, expressed by resolution, shall be required for such transfer, and such consent shall not be withheld unreasonably.
(d) A
rebuttable presumption that a transfer of control has occurred shall
arise upon the acquisition or accumulation by any person or group
of persons of fifty-one (51) percent of the voting shares of a grantee.
Every such change, transfer, or acquisition of control of the grantee
shall make the franchise subject to cancellation unless and until
the city shall have consented thereto, which consent will not be unreasonably
withheld.
(e) The
grantee shall promptly provide written notice to the city secretary,
who shall provide copies to the city manager and city attorney, of
any actual or proposed change in or transfer of or acquisition by
any other party of control of the grantee. Every change, transfer,
or acquisition of control of the grantee shall make the franchise
subject to cancellation unless and until the city council shall have
consented thereto. For the purpose of determining whether it shall
consent to such change, transfer, or acquisition of control, the city
council may inquire into the qualifications of the prospective controlling
party, and the grantee shall assist the city council in any such inquiry.
If the city council does not schedule a hearing on the matter within
sixty (60) days after notice of the change or proposed change and
the filing of a petition requesting its consent, it shall be deemed
to have consented. In the event that the city council adopts an ordinance
denying its consent and such change, transfer or acquisition of control
has been effected, the city council may cancel the franchise unless
control of the grantee is restored to its status prior to the change,
or to a status acceptable to the city council.
(f) The
consent of the council to any sale, transfer, lease, trust, mortgage
or other instrument of hypothecation shall not constitute a waiver
or release of any of the rights of the city under this article or
any franchise.
(g) In
the absence of extraordinary circumstances, the city will not approve
any transfer or assignment of a franchise prior to substantial completion
of construction or reconstruction of a cable system.
(h) In
no event shall a transfer of ownership or control be approved without
the successor in interest becoming a signatory to a franchise agreement.
(i) Nothing
herein shall require approval for a grantee’s assigning the
franchise to or selling its stock to wholly owned subsidiaries or
to affiliates under the same ultimate control and ownership as existed
prior to the assignment.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-156)
Upon the foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of any lease covering all or a substantial part of the system, a grantee shall notify the city secretary, who shall in turn notify the city manager and city attorney, in writing, of such fact, and such notification shall be treated as a notification that a change in control of a grantee has taken place, and the provisions of section
4-15-44 of this article, governing the consent of the city to such change in control of the grantee, shall apply.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-157)
The city shall have the right to cancel a franchise thirty (30)
days after the appointment of a receiver, or trustee, to take over
and conduct the business of the grantee, whether in receivership,
reorganization, bankruptcy, or other action or proceeding, unless
such receivership or trusteeship shall have been vacated prior to
the expiration of said thirty (30) days, or less [unless]:
(1) Within
one hundred twenty (120) days or a mutually agreed date after his
election or appointment, such receiver or trustee shall have fully
complied with all the provisions of this article and remedied all
defaults thereunder; and
(2) Such
receiver or trustee, within said one hundred twenty (120) days or
a mutually agreed date, shall have executed an agreement, consented
to by the council and duly approved by the court having jurisdiction
in the premises, whereby such receiver or trustee assumes and agrees
to be bound by each and every provision of this article and the franchise
granted to an original grantee.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-158)
If the city finds that there are issues in the community regarding
the channel capacity, technology or standard of facilities of the
grantee which should be considered by the city council, or any appointed
city board or committee, or by a designated city official, the grantee
agrees, through its appointed officials, to assist in developing the
necessary information and responding by personal appearance at meetings
or hearings related to such issues. It is understood that the FCC
currently has preempted local franchising authorities’ ability
to impose more onerous technical standards on all cable operations
than established by the FCC. However, the 1992 act permits franchising
authorities to apply to the FCC for a waiver to impose “more
stringent” technical standards than those prescribed by the
commission. It is the intent of this section to provide a basis and
a process for resolving any such local issues by mutual agreement
of the parties.
(Ordinance 99-28, sec. 1, adopted 6/22/99; 1957 Code, sec. 19-159)