means a contract entered into in accordance with the provisions of this chapter between the City and an OVS franchisee setting forth the terms and conditions under which the franchise will be exercised.
(a)
Initial and renewal franchise: application.
(1)
A written application shall be filed with the City for grant of an initial or renewal franchise.
(2)
To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under this chapter for cable TV or OVS franchises. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(b)
Contents of applications. The City Manager may specify the information that must be provided in connection with a request for proposals or an application for an initial or renewal franchise. At a minimum, each application must: identify the applicant, where it plans to construct its system, and the system construction schedule; show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the OVS; and show that the applicant is financially, technically and legally qualified to construct and operate the OVS.
(c)
Procedure for applying for grant of a franchise.
(1)
A person may apply for an initial or renewal franchise on its own initiative or in response to a request for proposals. Upon receipt of an application the City shall promptly proffer the applicant a proposed OVS Agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The City may request such additional information as it deems appropriate.
(2)
An applicant shall respond to requests for information completely, and within the time directed by the City, and must strictly comply with procedures, instructions, and requirements the City may establish.
(3)
An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests.
(d)
Evaluation. In evaluating a franchise application, the City may consider the following:
(1)
The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing City OVS franchise;
(2)
Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise;
(3)
Whether the application satisfies any minimum requirements established by the City for, or will otherwise provide adequate public, educational, and governmental use capacity, facilities, or financial support (including with respect to institutional networks);
(4)
Whether issuance of a franchise would require replacement of property or involve disruption of property, public services, or use of the public rights-of way;
(5)
Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the City.
(e)
Issuance. If the City finds that it is in the public interest to issue a City franchise considering the factors above, and such other matters as it is required or entitled to consider, and subject to the applicant's entry into an appropriate OVS agreement, it shall issue a franchise. Prior to deciding whether or not to issue a franchise, the City may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received.
(f)
Legal qualifications. In order to be legally qualified:
(1)
The applicant must be willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of an OVS agreement as the City may lawfully require.
(2)
The applicant must not hold a cable system franchise in the City, or have pending an application for a cable system franchise in the City.
(3)
The applicant must not have had any cable system or OVS franchise validly revoked, (including any appeals) by the City within three years preceding the submission of the application.
(4)
The applicant may not have had an application for an initial or renewal cable system franchise to the City denied on the ground that the applicant failed to propose a cable system meeting the cable related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application, and;
(5)
The applicant may not have had an application for an initial or renewal OVS franchise denied on any grounds within three years of the applications.
(6)
The applicant shall not be issued a franchise if, at any time during the 10 years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers, or to substantially comply with its obligations.
(7)
Applicant must have the necessary authority under California and Federal law to operate an OVS, and must be certified by the FCC under Section 653 of the Cable Act.
(8)
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.
(9)
For purposes of Section 4-11.27(f)(2) (5), the term applicant includes any affiliate of applicant.
(g)
Exception. Notwithstanding Section 4-11.27(f), an applicant shall be provided a reasonable opportunity to show that, a franchise should issue even if the requirements of Section 4-11.27(f) (4) (5) are not satisfied, by virtue of the 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 a cable system.
City approval required. No transfer shall occur without prior written notice to and approval of the City Council.
(a)
Application.
(1)
A franchisee shall promptly notify the City of any proposed transfer, and submit an application for its approval.
(2)
The City Manager may specify information that must be provided in connection with a transfer application. At a minimum, an application must describe the entities involved in the transaction and the entity that will hold the franchise; describe the chain of ownership before and after the proposed transaction; show that the entity that will hold the franchise will be legally, financially, and technically qualified to do so; attach complete information on the proposed transaction, including the contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; and attach any shareholder reports or filings with the Securities and Exchange Commission ("SEC") that discuss the transaction.
(3)
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. If the transferee or franchisee refuse to provide information, or provide incomplete information, the request for transfer may be denied.
(b)
Determination by City.
(1)
In deciding whether a transfer application should be granted, denied or granted subject to conditions, the City may consider the legal, financial, and technical qualifications of the transferee to operate the OVS; whether the incumbent OVS operator is in compliance with its OVS agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other OVS or cable system in the City, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable 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, the OVS agreement, or other applicable law.
(2)
In order to obtain approval of a transfer, an applicant must show, at a minimum, that: the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the City; and that non compliance issues have been resolved. No application 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 franchisee for all purposes. The proposed transferee shall pay all reasonable costs incurred by the City in reviewing and evaluating the applications.
(b)
Institutional network. Any OVS operator that constructs an I Net must match in all respects the highest I Net obligations borne by any cable operator in the City, unless it agrees to alternative I Net obligations acceptable to the City.
(c)
Construction provisions. Every OVS agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the OVS. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required.
(d)
Testing. Each OVS operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under this chapter or a franchise.
(e)
Consumer protection provisions. Every franchisee must satisfy customer service consumer protection requirements established from time to time under state or local law and applicable to OVS.
If a franchisee's FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, the City may revoke the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed.
The City may regulate a franchisee's rates and charges except as prohibited by law, and may do so by amendment to this chapter, separate ordinance, by amendment to an OVS Agreement, or in any other lawful manner.
(a)
OVS operators. In lieu of the franchise fee required an OVS franchisee shall pay a fee of 5% of the gross revenues of the franchisee, its affiliates or any OVS operator of the OVS.
(b)
Persons leasing OVS capacity.
(1)
A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made under Section 43-16 shall pay the City a fee in lieu of the franchise fee required by Chapter 2 of 5% of the gross revenues of such person.
(2)
Notwithstanding the foregoing, where franchisee charges a person, other than an affiliate, to use its OVS (the "use payments"); and that person recovers those use payments through charges to its subscribers that are included in that person's gross revenues; and that person fully recovers the use payments through the charges to its subscribers and pays a fee on those charges pursuant to Section 4-11.16 and 4-11.22, then franchisee may deduct from its gross revenues the use payments it receives from that person.
A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service, nor may a franchisee enter into any arrangement that would effectively prevent other persons from using the OVS to compete in the delivery of cable services with a franchisee or its affiliates.
The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.
Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter or any franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.
If any term, condition, or provision of this chapter shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or regulatory agency, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the City and shall thereafter be binding on the franchisee and the City.
(a)
Subscriber right to attach. To the extent consistent with Federal law, subscribers shall have the right to attach VCR's, receivers, and other terminal equipment to a franchisee's cable system. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.
(b)
Removal of existing antennae. A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit installation of a new antenna, provided that such antenna is connected with an appropriate device and complies with applicable law.
(a)
No retaliatory actions. A cable communications system operator shall not discriminate among persons or the City or take any retaliatory action against a person or the City because of that entity's exercise of any right it may have under Federal, State, or Local Law, nor may the operator require a person or the City to waive such rights as a condition of taking service.
(b)
Employment and hiring practices. A cable communications system operator shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, creed, national origin, sex, age, disability, religion, ethnic background, or marital status. A cable system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, and hiring practices, as the same may be amended from time to time.
(a)
Persons operating without a franchise. The operator of any facility installed as of the effective date of this chapter, for which a franchise is required under this chapter and for which a previous franchise has not been granted, shall have three months from the effective date of this chapter to file one or more applications for a franchise. Any operator timely filing such an application under this section shall not be subject to a penalty for failure to have such a franchise so long as said application remains pending; provided, however, nothing herein shall relieve any cable communications system operator of any liability for its failure to obtain any permit or other authorization required under other provisions of the Santa Maria Municipal Code, and nothing herein shall prevent the City from requiring removal of any facilities installed in violation of the Santa Maria Municipal Code.
(b)
Persons holding franchises. Any person holding an existing franchise for a cable communications system may continue to operate under the existing franchise to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise; and provided further that, such person shall be subject to the other provisions of this chapter to the extent permitted by law.
(c)
Persons with pending applications. Pending applications shall be subject to this chapter. A person with a pending application shall have 30 days from the effective date of this chapter to submit additional information to comply with the requirements of this chapter governing applications.