This Chapter 16A.02 shall be read and applied so that it is consistent with Sections 621, 625, and 626 of the Cable Act, 47 U.S.C. §§ 541, 545, and 546 to the extent the City is required to comply with those Cable Act sections; provided, however, that nothing herein shall be read to incorporate those provisions into the Tacoma Municipal Code, or prevent the City from challenging their applicability or to give any entity a right or a right of action or impose any obligation on the City which it would not otherwise have under such federal laws. The City may adopt procedures for conducting any proceedings required under federal law, including, without limitation, procedures for presentation of evidence; and may also specify the person or entity that will conduct any administrative hearing that may be required by federal law, should the City Council decide that it does not wish to conduct the proceeding itself. In any case, however, the final decision to deny or grant renewal shall remain with the City Council.
(Ord. 27787 Ex. A, 2009-02-24)
A. 
Written application.
1. 
A written application shall be filed with the City for the grant of an initial Franchise. Each entity that is required to hold a Franchise must submit an application therefore to the City Manager in accordance with the requirements of Chapter 16A.02. To be accepted for filing, an applicant must file an original and six copies of a complete application for a Franchise. An application may be filed by any Person on that Person’s own initiative or in response to a request for proposals. The City Manager is authorized to issue requests for proposals from time to time.
2. 
The City shall accept and review only those applications that include complete responses to every requirement of Section 16A.02.020. Submission of an application that does not include the requisite information set forth in Section 16A.02.020 and the Application Fee shall not commence the time period for granting or denying any application governed by 47 C.F.R. § 76.41(d). The applicant shall submit additional or updated information as necessary to ensure the requisite information provided is complete and accurate throughout the City’s review of the application.
B. 
Contents of applications. Except as expressly modified by the City for good cause, a request for proposals for a cable Franchise shall be deemed to require, and any application submitted pursuant to this Section 16A.02.020 shall contain, at a minimum, the following information:
1. 
Identity of the applicant, including the name, address, telephone number, and web site (if applicable); the name, address, telephone number, and e-mail address of all individual(s) authorized to represent the applicant before the City during its consideration of the Franchise(s) requested; management/organizational information, showing the management structure of the applicant. A similar chart shall also be provided identifying the relationship of the applicant to all general partners, parent corporations, subsidiaries, Affiliates, and all other subsidiaries of parent corporations, including a brief description of each entity’s relationship to the applicant.
2. 
An applicant shall list all Cable Systems in which it or any Affiliate owns more than 5 percent of the system.
3. 
Identification of the area of the City to be served by the proposed Cable System, including a description of the proposed Franchise Area’s boundaries.
4. 
Technical qualifications, planned Services and operations.
(a) 
The application shall describe the applicant’s planned initial and proposed Cable Services geographic area, including a map of all areas proposed to be served and proposed dates for offering service to each area, including a description of the miles of plant to be installed and a description of the size of equipment cabinets, shielding, and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust, and pollutants, if any, that will be generated by the operation of the same. Notwithstanding these requirements, if some of the descriptive data is not available at the time of application, a Franchise may be granted subject to conditions that the data be filed and approved by the City before construction begins and that the Franchise will be deemed to be forfeited if the data is not supplied and approved. The application shall additionally state whether the applicant proposes to provide Cable Services to the entire Franchise Area, and, if so, a proposed timetable for meeting that goal.
(b) 
If the applicant has or asserts existing authority to access the Public Rights-of-Way in any of the initial or proposed service areas listed in subsection 16A.02.020B.4(a) above, the applicant shall state the basis for such authority or asserted authority and attach the relevant agreements or other documentation of such authority.
(c) 
The applicant shall describe with particularity its planned residential Cable Services, including Basic Cable Services, other cable programming Service Tiers, and any additional pay-per-view, on-demand, or digital services; and the projected rates for each category or tier or service.
(d) 
The applicant shall describe with particularity its planned system technical design, performance characteristics, headend, access (and institutional network) facilities and equipment, upstream and downstream capacity and speed, provision for analog or digital services or packages, distribution of fiber, planned count of households per residential node, and any other information necessary to demonstrate that the applicant’s technology will be deployed so as to be able to successfully offer Cable Services in the proposed locations.
(e) 
The applicant shall describe with particularity its planned non-residential Cable Services.
(f) 
The applicant shall describe its planned construction and extension or phase schedule, as applicable, including system extension plans or policy, describing when and where construction will begin, how it will proceed, and when it will be completed; and describe the current status of the applicant’s existing or proposed arrangements, with area utilities, including pole attachments, vault, or conduit sharing agreements as applicable. Information shall include a designation of the portions of the system that will be placed above ground and the portions that will be placed underground, and the construction techniques that the Operator proposes to use in installing the system above ground and underground; and the expected effect on Public Rights-of-Way usage, including information on the ability of the Public Rights-of-Way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities. In addition, applicant shall provide a description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
(g) 
The applicant shall describe its plan to ensure that the safety, functioning, and appearance of property and convenience and safety of other persons not be adversely affected by installation or construction of the applicant’s facilities, and that property owners are justly compensated for any damages caused by the installation, construction, operation, or removal of the facilities.
(h) 
The applicant shall describe its plan to comply with the Subscriber privacy protections set forth in 47 U.S.C. § 551, and the privacy protections of any state or local statutes, ordinances, or regulations.
5. 
A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, as reasonably determined or established by the City.
6. 
A demonstration of the financial qualifications of the applicant, including at a minimum, a statement regarding the applicant’s financial ability to complete the construction to meet the time frame proposed and to operate the Cable System proposed certified by the applicant’s chief financial officer.
7. 
A demonstration of the applicant’s technical ability to construct and/or operate the proposed Cable System.
8. 
A demonstration that the applicant is legally qualified, which proof must include a statement from the applicant:
(a) 
Whether it has received, or is in a position to receive, necessary authorizations from state and federal authorities;
(b) 
Whether it has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows City to conclude the applicant cannot be relied upon to comply with requirements of Franchise, or provisions of this subtitle;
(c) 
Whether it or any Affiliate has been found in violation by a regulatory authority or franchising authority of any Franchise ordinance or agreement, contract or regulation governing a Cable System. If so, the applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal, and result or disposition of that proceeding;
(d) 
Whether it has been found in violation by a regulatory authority of any other type (e.g. utility) of Franchise, ordinance, agreement, permit, contract, or regulation. If so, the applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal, and result or disposition of that proceeding;
(e) 
Whether it is willing to enter into a Franchise, to pay required compensation, and to abide by the provisions of applicable law, including those relating to the construction, operation, or repair of its facilities, and has not entered into any agreement that would prevent it from doing so.
9. 
Declaration of applicant. Each application shall be accompanied by a declaration substantially in the form set forth below:
This application is submitted by the undersigned who has been duly authorized to make the representations within on behalf of the applicant and certifies the representations are true and correct.
The applicant recognizes that all representations are binding on it, that all application commitments are enforceable, and that material misrepresentations or omissions, or failure to adhere to any such representation may result in a denial of an application by the City.
The applicant shall comply with all applicable local laws.
Consent is hereby given to the City and its representatives to make inquiry into the legal, character, technical, financial, and other qualifications of the applicant by contacting any persons or organizations named herein as references, or by any other appropriate means.
 
“I certify (or declare) under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct”:
(Date and Place)
(Signature)
(Ord. 27787 Ex. A, 2009-02-24)
A. 
Minimum deposit. Every application for a new Franchise shall be accompanied by an initial minimum deposit in the amount of $5,000.00 or, in the discretion of the City Manager, such higher amount as may be necessary to cover the City’s costs in processing the application.
B. 
Publication expenses. In addition, an applicant that is awarded a Franchise, shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a Franchise, pursuant to the provisions of Subtitle 16A. Such payment shall be made by delivery of payment to the City Treasurer within 30 days after the City furnishes the Franchisee with a written statement of such expenses.
C. 
Failure to remit fees. No Franchise shall become effective until all required fees and costs are paid.
(Ord. 27787 Ex. A, 2009-02-24)
Unless otherwise provided by law, information submitted as part of a Franchise application is open to public inspection and subject to the Washington Public Records Act (Chapter 42.56 RCW). It is the applicant’s responsibility to be familiar with the Washington Public Records Act. An applicant may specifically identify any information it considers proprietary by providing said information to City in a separate envelope marked “Proprietary Information.” In the event that: (A) the City receives a request from another party to disclose any information which the applicant has deemed proprietary, and if the City Attorney determines that said information may be subject to being disclosed; or (B) the City determines that the information should be disclosed in connection with its enforcement of any provision of this subtitle, or in the exercise of its police or regulatory powers, then the City shall notify the applicant of the applicant’s opportunity to seek a protective order from a court with appropriate jurisdiction. In the event an action is not commenced within ten working days, the City may disclose said information. By submitting information which the applicant deems proprietary or otherwise exempt from disclosure, the applicant agrees to defend and hold harmless the City from any claim for disclosure, including, but not limited to, any expenses including out-of-pocket costs and attorneys’ fees, as well as any judgment entered against the City for the attorney fees of the party requesting disclosure.
(Ord. 27787 Ex. A, 2009-02-24)
A. 
Acceptance of application. Within ten business days of receipt of an application for a new Franchise, the City shall review the application to ensure all requisite information is included in the application. If the application is not complete, the City will notify the applicant in writing, listing the requisite information that is required to complete the application. Such notification will also inform the applicant that the time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will not begin to run until such information is received. If the application is complete, the City will notify the applicant in writing that all requisite information has been received.
B. 
Staff review. The City staff shall review all completed applications based on the review criteria set forth herein. If, during the review of an application, staff reasonably requires additional information from the applicant, staff will promptly request the information from the applicant, in writing. Such notification will also inform the applicant that the time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will be tolled until such information is received by the City. After completing the review, staff shall provide an analysis of the application to the City Council.
C. 
Franchise negotiations. Upon acceptance of a complete application, the City shall commence the process for negotiating a Franchise agreement with the applicant. Within the time period set forth in 47 C.F.R. § 76.41(d), the City shall attempt to negotiate a cable Franchise agreement with the applicant, and within that time period, schedule the application and any proposed Franchise for public hearing, as set forth in Section 16A.02.050D.
D. 
Public hearing. The City shall hold a public hearing before acting on an application, affording participants a process substantially equivalent to that required by 47 U.S.C. § 546(c)(2) governing renewal of cable Franchises.
E. 
Review criteria. The City may deny an application if, based on the information provided in the application, at the public hearing, and/or any terms of a proposed Franchise agreement: (1) the applicant does not have the financial, technical, or legal qualifications to provide Cable Service; (2) the applicant will not provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; or (3) the applicant’s proposed terms do not comply with applicable federal, state, and local laws and regulations, including, but not limited to, local customer service standards, or relevant existing contractual obligations of the City.
F. 
Grant or denial of Franchise application. If the City finds that it is in the public interest to issue a Franchise considering the factors set forth above, the City may adopt a Franchise ordinance setting forth the terms and conditions of the Franchise, which Franchise shall become effective upon satisfaction of conditions precedent to effectiveness, and when signed and accepted by the applicant. If the City denies a Franchise, it will cause a written explanation of the denial to issue, which may be in any appropriate form. Without limiting its authority to deny an application for a Franchise, the City specifically reserves the rights to reject any application that is incomplete or fails to respond to a Request For Proposal. Nothing in this subtitle shall be construed in any way to limit the discretion and legislative authority of the City Council in making decisions relative to the granting, denial, or renewal of a Franchise.
(Ord. 27787 Ex. A, 2009-02-24)
A. 
Renewal under cable act. To the extent required by federal law, requests for cable Franchise renewal under the Cable Act will be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. § 546.
B. 
Informal applications for renewal. Notwithstanding the provisions of Section 16A.02.020, a Cable Operator may submit a proposal for renewal of a Franchise, pursuant to 47 U.S.C. § 546(h). Such a proposal may be submitted at any time and the City may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings have been commenced in accordance with 47 U.S.C. § 546(a)). An informal application for renewal may be denied for any reason.
(Ord. 27787 Ex. A, 2009-02-24)
A. 
An application for modification of a Franchise 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 submission of pro forma financial statements or similar financial documentation, or other evidence of the impacts on Subscribers;
3. 
A statement indicating whether the modification is sought, pursuant to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;
4. 
Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and
5. 
A declaration of the applicant or applicant’s authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law.
B. 
A request for modification submitted pursuant to 47 U.S.C. § 545 shall be considered in accordance with the requirements of that section.
C. 
Public hearings. An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given a reasonable opportunity to be heard. In addition, prior to the issuance of a Franchise, the City shall provide for the holding of a public hearing within the proposed Franchise Area, following notice to the public, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
(Ord. 27787 Ex. A, 2009-02-24)