No person shall establish, construct, operate, or maintain within this city a cable system unless a franchise has been obtained pursuant to the provisions of this division, and unless such franchise is in full force and effect.
(Ord. 277 § 3, 2002)
The city council may grant one or more nonexclusive revocable franchises to establish, construct, operate and maintain cable systems within the city. A franchise shall be effective only upon execution of a franchise agreement between the city and a cable operator and compliance with all requirements of this code. The franchises shall be subject to the provisions of this code as they may be amended from time to time.
(Ord. 277 § 3, 2002)
A franchise shall be granted for 10 years or such other period as may be specified in the franchise agreement.
(Ord. 277 § 3, 2002)
All applicants for a new franchise, a franchise renewal or a franchise transfer shall submit a written application to the city. All applicants shall be expected to offer to subscribers a modern, efficient, cost-effective system that will facilitate quality maintenance, deliver a variety of programming and services, and provide the flexibility needed to adjust to changing technology and new developments in the industry. Applicants are encouraged to formulate their proposals in an innovative fashion, so as to meet the informational requirements of the city and the service needs of subscribers. Proposals shall contain sufficient material to enable the city council to make fully informed judgments concerning the adequacy of the proposal and the applicant's qualifications to construct, operate and maintain a cable system in the city. All applicants shall, at a minimum, provide the following information unless waived by the city manager:
A.
The true identity of the franchise applicant, including all affiliates of the applicant.
B.
A description of the cable services that are or will be offered or provided by the franchise applicant over its existing or proposed facilities.
C.
A technically detailed and comprehensive description of the transmission medium that will be used by the cable operator to offer or provide such cable services.
D.
Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, all in sufficient detail to identify:
1.
The location and route requested for applicant's proposed cable facilities.
2.
The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route.
3.
The location(s), if any, for interconnection with the cable facilities of other cable carriers.
4.
The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.
E.
If applicant is proposing to install overhead facilities, evidence that adequate surplus space is available for locating its cable facilities on existing utility poles along the proposed route.
F.
If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:
G.
A preliminary construction schedule and completion dates.
H.
Financial statements prepared in accordance with generally accepted accounting principles by a certified public accountant or other accountant satisfactory to the city demonstrating the applicant's present and future financial ability to construct, operate, maintain, relocate, and remove the facilities. If in the normal course of its business, the applicant does not prepare a separate financial statement for the franchised system, the applicant may submit a combined financial statement for the local region, which statement shall include the franchised system.
I.
Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the cable facilities and services described in the application.
J.
Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the cable services.
K.
A detailed description of all telecommunications services that the applicant intends to provide and sufficient information to determine whether such services are subject to franchising.
L.
An accurate map showing the location of any existing cables facilities in the city that applicant intends to use or lease, if any.
M.
A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.
N.
A description of applicant's access and line extension policies.
O.
The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area.
P.
The number of activated, programmed channels that the applicant intends to provide together with the programming that the applicant intends to provide.
R.
Such other and further information as may be requested by the city manager.
If a franchise is granted to a person, firm or corporation posing as a front or as the representative or another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever.
(Ord. 277 § 3, 2002)
A.
An application fee for a new, renewal or transfer of franchise shall be required in the amount established from time to time by resolution of the city council.
B.
The purpose of the application fee is to pay the cost of studying, investigating and otherwise processing such application, which shall be in consideration thereof and not returnable or refundable in whole or in part. Application fees are over and above construction inspection and permit fees. Application fees shall include, but not limited to, all costs incurred in assessing community needs, conducting public meetings, and reviewing applications and negotiating franchise agreements, including consultant and attorney fees.
(Ord. 277 § 3, 2002)
Upon receipt of an application for a new franchise, the city council may, by resolution, approve or conditionally approve a franchise agreement with the applicant or deny the application. In making any determination hereunder as to any application, the city council shall give due consideration to: the quality of the service proposed; rates to subscribers; experience, character, background and financial responsibility of the applicant, its management and owners; system design; technical and performance quality of equipment; willingness and ability to meet construction requirements and to abide by franchise limitations and requirements; and other considerations deemed pertinent by the city council for safeguarding the interests of the city and the public.
(Ord. 277 § 3, 2002)
A.
During the six-month period which begins with the thirty-sixth month before the franchise expiration, a proceeding to consider the renewal of a franchise shall be commenced either upon receipt of a written notice from the cable operator requesting such a proceeding, or upon the city's own initiative. If the city receives such a notice from the cable operator, it shall commence the proceeding within six months of receipt. This proceeding shall be for the purpose of, among other things, identifying the future cable-related community needs and interests, and reviewing the performance of the cable operator under the franchise during the then-current franchise term. The proceeding shall include, without limitation, a review of the foregoing matters by city staff and at least one noticed public meeting. The proceeding shall not be deemed complete until the review has been completed and the city has given the cable operator written notice of cable system and service features necessary to meet future cable-related community needs and interests, and of information that must be included in a proposal for a renewal, and of a deadline for submission of a renewal proposal.
C.
Upon receipt of a renewal proposal pursuant to subsection B of this section, the city shall provide prompt public notice of the proposal. Within four months after receipt of the proposal, the city shall either (1) renew the franchise or renew the franchise subject to conditions by adoption of a city council resolution approving a franchise agreement; or (2) issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding concerning the renewal.
D.
Any administrative proceeding pursuant to subsection (C)(2) of this section shall consider whether:
1.
The cable operator has substantially complied with the material terms of the existing franchise and with applicable law;
2.
The quality of the operator's service, including but not limited to signal quality, response to consumer complaints, and billing practices, but without regard to the mix or quality of cable services or other services provided over the system, has been reasonable in light of community needs;
3.
The operator has the financial, legal and technical ability to provide the services, facilities, and equipment as set forth in the operator's proposal; and
4.
The operator'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.
The cable operator shall be given at least 14 days' advance notice of the administrative proceeding. The cable operator shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence and to question witnesses. A transcript shall be made of the proceeding. At the completion of the proceeding, the city shall issue a written decision, with the reasons therefor, granting, conditionally granting or denying the proposal for renewal based upon the record of the proceeding. The city shall transmit a copy of the decision to the cable operator. Any denial of a proposal for renewal made in compliance with subsection B of this section shall be based on one or more adverse findings made with respect to the factors described in this subsection. A denial may not be based on any violation of the franchise or any events described in subsection (D)(2) of this section which occurred after 1984 unless the city provided the cable operator with notice and the opportunity to cure, or in any case in which it is documented that the city waived its right to object, or the cable operator gave written notice of a failure or inability to cure and the franchising authority failed to object within a reasonable time after receipt of such notice.
E.
The city and a cable operator may agree to waive the provisions of subsections A through D of this section. If the city and a cable operator agree to such a waiver, the cable operator may submit a proposal for the renewal of a franchise pursuant to this subsection at any time, and the city may, after affording the public adequate notice and opportunity for comment, renew the franchise or renew the franchise subject to conditions by adoption of a city council resolution approving or conditionally approving a franchise agreement, or deny the franchise renewal. The provisions of subsection A through D of this section shall not apply to a decision to grant or deny a renewal pursuant to this subsection. The denial or a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections A through D of this section.
(Ord. 277 § 3, 2002)
A.
A franchise is a privilege to be held in personal trust by the original cable operator. A cable operator shall not sell, transfer, lease, dispose of or assign this franchise or any rights thereunder, including any beneficial interest or right to operate thereunder, by voluntary sale, merger, consolidation, or otherwise or by operation of law, without the prior approval of the city council.
B.
If a cable operator is a partnership or a corporation, prior approval of the city council is also required when there is an actual change in control of the cable operator. A change in control shall be deemed to include, but is not limited to, the following: (1) in the case of a partnership, the general partner changes, (2) ownership of 20 percent or more of its voting stock or the voting stock of any parent or affiliate which directly or indirectly through other affiliates owns 20 percent or more of the cable operator's voting stock is to be acquired by a person or group of persons acting in concert. The word "control" as used in this section is not limited to major stockholders but includes de facto control or significant influence with respect to the operation of the cable operator's cable system. For purposes of this section, "significant influence" occurs where a person other than the cable operator or a person controlling, controlled by or under common control with the cable operator exercises working or effective control of decisions affecting the operation of the cable system.
C.
The consent of the city council is not required for transfer of the franchise to a wholly owned subsidiary of the cable operator or to any person controlling, controlled by or under common control with the cable operator providing any such person agrees in writing to be bound by the existing franchise and provides bonds and insurance acceptable to the city. The city shall continue to regard the cable operator and its transferee as a single entity for all purposes.
D.
A cable operator's execution of a deed of trust, mortgage or other instrument given merely to secure the payment of any indebtedness of a cable operator shall not constitute a transfer under this division and shall not require the consent of the city council.
E.
Upon foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of a lease covering all or a substantial part of the system, the cable operator shall notify the city of the fact. The notification shall be considered as notice that a change in control of the cable operator has occurred. In this case the city council's approval of the new owner of the system must be obtained as herein required.
F.
Prior to any transfer or change in control, a cable operator shall submit to the city any form required by federal law together with the matters described in HMC § 5.22.204. The city council shall approve, conditionally approve or deny the transfer or change in control within 120 days following receipt of all required material unless an extension is agreed to by the city and the cable operator. Conditions of approval may include, but are not limited to, the following: (1) resolution of any outstanding franchise violations or performance deficiencies; (2) payment of any outstanding franchise fees; (3) payment of city costs incurred in reviewing the transfer; (4) filing of any appropriate bonds, insurance endorsements, letters of credit or guarantees; and (5) written assumption of all obligations of the transferor by the transferee.
G.
Within 30 days after the date of the resolution approving transfer of the franchise, or within such extended period of time as the city council in its discretion may authorize, the transferee shall file with the clerk of the city council its written acceptance of the franchise, in a form satisfactory to the city, together with all required bonds and insurance certificates, and its agreement to be bound by and to comply with and to do all things required of it by the provisions of this division and the franchise award resolution. Such acceptance and agreement shall be acknowledged by the transferee before a notary public and shall be in a form and content satisfactory to and approved by the city attorney.
H.
The city may cancel a franchise 60 days or later after the appointment of a receiver or trustee to take over and conduct the business of the cable operator, whether in receivership, or other action or proceeding, unless the receivership or trusteeship is vacated prior to the expiration of the 60 days, or unless:
1.
Within 60 days after his election or appointment, the receiver or trustee complies with this division and remedies all defaults; and
2.
Such receiver or trustee, within 60 days, executes an agreement, approved by the court, whereby the receiver or trustee assumes and agrees to be bound by this division and the franchise granted to cable operator.
I.
Failure to comply with the requirements of this section is a material breach of this title, subject to the remedies provided for herein.
(Ord. 277 § 3, 2002)
If a cable system is established, constructed, operated or maintained within the city without the franchise required by this division, the city may notify the cable operator of the franchise requirement. If the operator continues an unauthorized operation for 30 days after such notice from the city, the operator shall forfeit to the city all gross revenues from the system for so long as such unauthorized operation continues. The city may also pursue any civil or criminal remedies, including but not limited to obtaining injunctive relief to immediately enjoin the continued unauthorized operation.
(Ord. 277 § 3, 2002)
Within 30 days after annexation of areas to the city which are served by a cable operator who does not have a franchise from the city, the cable operator shall apply for a new franchise. Pending consideration of such a franchise, the cable operator shall comply with each and every provision of this article, including, but not limited to, the franchise fee requirement. If a newly annexed area is not actively served by a cable operator, the cable operator(s) serving the area with the city contiguous to the newly annexed area shall provide service to that area subject to the provisions of its franchise agreement.
(Ord. 277 § 3, 2002)
Should a joint exercise of powers agreement (Gov. Code, Section 6500 et seq.) or similar agreement be entered between the county and a city or cities located therein in accordance with law providing for the joint regulation of cable operators and cable services or other cooperative arrangements, involved cable operators shall be governed by, and subject to that agreement, pursuant to this title's provisions; provided, that no such joint powers agreement shall impair any right or obligation of the cable operator under a franchise agreement.
(Ord. 277 § 3, 2002)
Insofar as it is not preempted by federal or state regulations, the city reserves all rights it may have or subsequently acquire under state, federal or other law with respect to the regulation of cable services or other communication services by a cable operator. The city further reserves the right to amend this code and apply such amendments to an incumbent cable operator in any manner that is not explicitly prohibited by a franchise agreement. A franchise granted pursuant to this article shall not be deemed to authorize or prohibit the provision of telecommunications services other than cable services. The provision of such other telecommunications services shall be governed exclusively by other articles of this chapter.
(Ord. 277 § 3, 2002)