The provisions of this Part 3 are applicable to an open video
system operator, as defined below in Part 5, that intends to deliver
video programming to consumers in the city over an open video system,
as authorized by 47 CFR Part 76.
(Prior code § 61020; Ord. 98-519 § 1, 1998)
a. Before
commencing the delivery of video programming services to consumers
in the city over an open video system, the open video system operator
must file an application with the city. That application must include
or be accompanied by the following, as applicable:
1. The
identity of the applicant, including all affiliates of the applicant.
2. Copies
of FCC Form 1275, all "Notices of Intent" filed under 47 CFR § 76.1503(b)(1),
and the Order of the FCC, all of which relate to certification of
the applicant to operate an open video system in accordance with Section
653(a)(1) of the Communications Act and the FCC's rules.
3. The
area or areas of the city that the applicant desires to serve.
4. A
description of the open video system services that will be offered
by the applicant over its existing or proposed facilities.
5. A
description of the transmission medium that will be used by the applicant
to deliver the open video system services.
6. Information
in sufficient detail to establish the applicant's technical qualifications,
experience, and expertise regarding the ownership and operation of
the open video system described in the application.
7. Financial
statements verified by a certified public accountant or otherwise
certified to be true, complete, and correct to the reasonable satisfaction
of the city, that demonstrate the applicant's financial ability to:
A. Construct, operate, maintain and remove any new physical plant that
is proposed to be constructed in the city.
B. Comply with the city's public, educational, and governmental access requirements as specified below in subsection
(b)(4) of Section
11.40.110.
C. Comply with the city's requirement that gross revenue fees be paid in the sum of five percent, as specified below in subsection
(b)(2) of Section
11.40.110.
8. An
accurate map showing the location of any existing telecommunications
facilities in the city that the applicant intends to use, to purchase,
or to lease.
9. If
the applicant's operation of the open video system will require the
construction of new physical plant in the city, the following additional
information must be provided:
A. A preliminary construction schedule and completion dates.
B. Preliminary engineering plans, specifications, and a network map
of any new facilities to be constructed in the city, in sufficient
detail to identify:
(i) The location and route requested for the applicant's proposed facilities;
(ii)
The locations, if any, for interconnection with the facilities
of other telecommunications service providers;
(iii)
The specific structures, improvements, facilities, and obstructions,
if any, that the applicant proposes to remove or relocate on a temporary
or permanent basis.
C. The applicant's statement that, in constructing any new physical
plant, the applicant will comply with all applicable ordinances, rules,
and regulations of the city, including the payment of all required
permit and processing fees.
10. The information and documentation that is required to be submitted to the city by a video provider, as specified below in subsection
(b) of Section
11.40.130.
11. Such additional information as may be requested by the city Manager.
12. A nonrefundable filing fee in an amount established by resolution
of the City Council.
b. If any item of information specified above in subsection
(a) is determined under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that such information be included in the application.
(Prior code § 61021; Ord. 98-519 § 1, 1998)
Within thirty days after receipt of an application filed under Section
11.40.090 that is deemed to be complete, the City Manager will give written notice to the applicant of the city's intent to negotiate an agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the city. The commencement of those negotiations will be on a date that is mutually acceptable to the city and to the applicant.
(Prior code § 61022; Ord. 98-519 § 1, 1998)
a. No
video programming services may be provided in the city by an open
video system operator unless the operator and the city have executed
a written agreement setting forth the terms and conditions under which
the operation of the proposed open video system will be authorized
by the city.
b. The
agreement between the city and the open video system operator may
contain terms and conditions that relate to the following subject
matters, to the extent that such terms, conditions, and subject matters
are not preempted by federal statute or regulations:
1. The
nature, scope, and duration of the agreement, including provisions
for its renewal or extension.
2. The
obligation of the open video system operator to pay to the city, at
specified times, fees on the gross revenues received by the operator,
as authorized by 47 CFR § 76.1511, in accordance with the
following standards and procedures:
A. The amount of the fees on the gross revenues will be five percent,
and will be paid in lieu of the franchise fees permitted under Section
622 of The Communications Act.
B. The term "gross revenues" means (i) all gross revenues received by
an open video system operator or its affiliates, including all revenues
received from subscribers and all carriage revenues received from
unaffiliated video programming providers; and (ii) all advertising
revenues received by the operator or its affiliates in connection
with the provision of video programming, where such revenues are included
in the calculation of the cable franchise fee paid to the city by
the franchised cable operator. The term "gross revenues" does not
include revenues, such as subscriber or advertising revenues, collected
by unaffiliated video programming providers.
3. The
obligation of the open video system operator to comply with requirements
relating to information collection and recordkeeping, accounting procedures,
reporting, periodic audits, and inspection of records in order to
ensure the accuracy of the fees on the gross revenues that are required
to be paid as specified above in subsection (b)(2).
4. The
obligation of the open video system operator to meet the city's requirements
with respect to public, educational, and governmental access channel
capacity, services, facilities, and equipment, as provided for in
47 CFR § 76.1505. In this regard, the following standards
and procedures are applicable:
A. The open video system operator is subject to the same public, educational,
and governmental access requirements that apply within the cable television
franchise service area with which its system overlaps.
B. The open video system operator must ensure that all subscribers receive
all public, educational, and governmental access channels within the
franchise service area in which the city's subscribers are located.
C. The open video system operator may negotiate with the city to establish
the operator's obligations with respect to public, educational and
governmental access channel capacity, services, facilities, and equipment.
These negotiations may include the city's franchised cable operator
if the city, the open video system operator, and the franchised cable
operator so desire.
D. If the open video system operator and the city are unable to reach
an agreement regarding the operator's obligations with respect to
public, educational, and governmental access channel capacity, services,
facilities, and equipment within the city's jurisdiction, then the
following obligations will be imposed:
(i) The open video system operator must satisfy the same public, educational,
and governmental access obligations as the city's franchised cable
operator by providing the same amount of channel capacity for public,
educational, and governmental access and by matching the city's franchised
cable operator's annual financial contributions in support of public,
educational, and governmental access services, facilities, and equipment
that are actually used by the city. For in-kind contributions, such
as cameras or production studios, the open video system operator may
satisfy its statutory obligation by negotiating mutually agreeable
terms with the city's franchised cable operator, so that public, educational,
and governmental access services to the city are improved or increased.
If such terms cannot be agreed upon, the open video system operator
must pay to the city the monetary equivalent of the franchised cable
operator's depreciated in-kind contribution, or, in the case of facilities,
the annual amortization value. Any matching contributions provided
by the open video system operator must be used to fund activities
arising under Section 611 of the Communications Act.
(ii)
The city will impose upon the open video system operator the
same rules and procedures that it imposes upon the franchised cable
operator with regard to the open video system operator's use of channel
capacity designated for public, educational, and governmental access
use when that capacity is not being used for such purposes.
E. The city's franchised cable operator is required under federal law
to permit the open video system operator to connect with its public,
educational, and governmental access channel feeds. The open video
system operator and the franchised cable operator may decide how to
accomplish this connection, taking into consideration the physical
and technical characteristics of the cable and the open video systems
involved. If the franchised cable operator and the open video system
operator cannot agree on how to accomplish the connection, the city
has the right to decide. The city may require that the connection
occur on city-owned property or on public rights-of-way.
F. All costs of connection to the franchised cable operator's public,
educational, and governmental access channel feed must be borne by
the open video system operator. These costs will be counted towards
the open video system operator's matching financial contributions
set forth above in subdivision (d)(i).
G. The city will not impose upon the open video system operator any
public, educational, or governmental access obligations that are greater
than those imposed upon the franchised cable operator.
H. If there is no existing franchised cable operator, the provisions
of 47 CFR § 76.1505(d)(6) will be applicable in determining
the obligations of the open video system operator.
I. The open video system operator must adjust its system to comply with
new public, educational, and access obligations imposed on the city's
franchised cable operator following a renewal of the cable television
franchise; provided, however, that the open video system operator
will not be required to displace other programmers using its open
video system to accommodate public, educational, and governmental
access channels. The open video system operator must comply with such
new public, educational, and governmental access obligations whenever
additional capacity is or becomes available, whether it is due to
increased channel capacity or to decreased demand for channel capacity.
5. If the city and the open video system operator cannot agree as to the application of the FCC's rules regarding the open video system operator's obligations to provide public, educational, and governmental access under the provisions of subsection
4 set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR § 76.1514. No agreement under this section authorizing an applicant to provide services over an open video system will be executed by the city until the dispute has been finally resolved.
6. If
the open video system operator intends to maintain an institutional
network, as defined in Section 611(f) of the Communications Act, the
city will require that educational and governmental access channels
be designated on that institutional network to the same extent that
those channels are designated on the institutional network of the
city's franchised cable operator.
7. The
authority of an open video system provider to exercise editorial control
over any public, educational, or governmental use of channel capacity
will be restricted in accordance with the provisions of 47 CFR § 76.1505(f).
8. The
obligation of the open video system operator to comply with all applicable
federal and state statutes and regulations relating to customer service
standards, including the Cable Television and Video Customer Service
and Information Act (
Government Code §§ 53054
et seq.), and the Video Customer Service Act (Government
Code §§ 53088
et seq.).
9. If
new physical plant is proposed to be constructed within the city,
the obligation of the open video system operator to comply with the
following rights-of-way use and management responsibilities that are
also imposed by the city upon other telecommunications service providers
in a nondiscriminatory and competitively neutral manner:
A. Compliance with all applicable city building and zoning codes, including
applications for excavation, encroachment, and construction permits
and the payment of all required permit and inspection fees.
B. The coordination of construction requirements.
C. Compliance with established standards and procedures for constructing
lines across private property.
D. Compliance with all applicable insurance and indemnification requirements
imposed by the city.
E. The repair and resurfacing of construction-damaged streets.
F. Compliance with all public safety requirements that are applicable
to telecommunications service providers using public property, or
public rights-of-way.
10. Acts or omissions constituting breaches or defaults of the agreement,
and the applicable penalties, liquidated damages, and other remedies,
including fines or the suspension, revocation, or termination of the
agreement.
11. Requirements relating to the sale, assignment, or transfer of the
open video system.
12. Requirements relating to the open video system operator's compliance
with and implementation of state and federal laws, rules, and regulations
pertaining to the operation of the open video system.
13. Such additional requirements, conditions, terms, policies, and procedures
as may be mutually agreed upon by the city and the open video system
operator and that will, in the judgment of the City Council, best
serve the public interest and protect the public health, welfare,
and safety.
(Prior code § 61023; Ord. 98-519 § 1, 1998)