The city manager is responsible for enforcing and administering this title, and the city manager is authorized to give any notice required by law or under any franchise, including by way of example and not limitation, a notice required under 47 U.S.C. Section 546. The city manager is also authorized to seek information from any communications system operator, to establish forms for submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this title or any franchise. Franchises may only be denied, issued or revoked by action of the city council.
(Ord. 1402 § 1(11.01.8.1), 2001)
A. 
An application must be filed for an initial franchise or license, for a transfer, or for renewal of a franchise or license. Each entity that is required to hold a franchise or license must submit an application therefor to the city manager in accordance with the requirements of this title. To be accepted for filing, an original and three copies of a complete application for a franchise and an original and three copies of a complete application for a license must be submitted, showing the routes the applicant proposed to use. All applications shall be available for public inspection. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
B. 
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.
C. 
Every application shall be accompanied by an initial deposit in the amounts of $5,000 for franchises and $1,000 for licenses.
D. 
In addition, an applicant that is awarded a franchise or license 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 or license. Such payment shall be made by delivery of payment to the city within 30 days after the city furnishes the franchisee or licensee with a written statement of such expenses.
E. 
No franchise shall become effective until all required fees and costs are paid.
F. 
Notwithstanding any other provision of this title, pledges in trust or mortgages of the assets of a franchised or licensed communications system to secure the construction, operation, or repair of the system may be made without application and without the city's prior consent; except that no such arrangement may be made if it would in any respect under any condition prevent the communications system operator or any successor from complying with the franchise or license and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the operator, or to own or control the communications system, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this title, or other applicable law.
G. 
The city council may, in its sole discretion which is hereby reserved, (1) approve or disapprove a license, and (2) require such terms and conditions in the license agreement as deemed in the best interest of the city. The city manager or city council may request such additional information from an applicant for a license as deemed appropriate in order to proceed with consideration of the application.
(Ord. 1402 § 1(11.01.8.2), 2001)
In addition to satisfying the other applicable requirements of this chapter, every franchise or license for a communications system shall contain the following provisions:
A. 
The franchise or license shall provide that neither the granting of any franchise or license, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the franchise or license is issued or thereafter be obtained.
B. 
The franchise or license shall only authorize occupancy of the right-of-way to provide the services and for the purposes described in the franchise or license.
C. 
A franchise or license shall be a privilege that is held in the public trust and personal to the original franchisee. The franchise or license shall ensure that no transfer of the franchise or license may occur, directly or indirectly, without the prior consent of the city, except as contemplated by FMC 11.01.250(F) or as otherwise expressly provided in this title.
D. 
The franchise or license shall contain appropriate provisions for enforcement, compensation, and protection of the public, consistent with the other provisions of this title.
E. 
The franchise or license shall be for a specified term, set forth in the franchise or license. No franchise issued under this title shall be for a term of longer than 10 years, unless the council determines that a longer period would be in the city's interest. No license issued under this title shall be for a term of longer than five years.
F. 
Such other terms as are required by the city.
G. 
License shall be discretionary.
(Ord. 1402 § 1(11.01.8.3), 2001)
Any person found to have occupied or carried out activities in the public rights-of-way without first having obtained or having in effect a valid franchise, license, or permit as required by this title shall be guilty of a misdemeanor. Each day that any such occupancy or activity shall continue in violation of this title shall constitute a separate offense.
(Ord. 1402 § 1(11.01.8.4), 2001; Ord. 1777 § 1 (Exh. A), 2012)
A. 
Licenses shall be revocable at will.
B. 
Where, after notice and providing the franchisee an opportunity to be heard (if such opportunity is timely requested by a franchisee), the city finds that the facility is being maintained or operated in violation of this title or in substantial violation of the terms of the franchise, the city may make an appropriate reduction in the remaining term of the franchise or revoke the franchise. The city manager is authorized to establish and conduct a proceeding that complies with the requirements of this subsection, and to issue a decision which will become final unless appealed to the city council within 30 days of the decision of the city manager. Notwithstanding the foregoing, the franchise may only be revoked if the franchisee (1) was given notice of the default, and (2) was given 30 days to cure the default, and (3) failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in 30 days. The required notice may be given before the city conducts the proceeding required by this subsection. No opportunity to cure is allowed for fraud, which shall be deemed incurable.
C. 
Notwithstanding the foregoing, subsection B of this section, the city may declare a franchise forfeited without opportunity to cure or the notice required by subsection B of this section where the franchisee (1) fails to begin to exercise its rights under the franchise within a period specified in the franchise, (2) stops providing service it is required to provide in the franchise, (3) without the prior consent of the city, transfers the franchise, (4) fails to pay the occupancy fees or franchise fees owed, or (5) defrauds or attempts to defraud the city or the operator's customers. However, a franchisee shall have the right to receive 30 days' prior notice of an intent to declare a franchise forfeited, and shall have the opportunity to show cause why the franchise should not be forfeited.
D. 
Notwithstanding the foregoing, subsections A through C of this section, a franchise or license will automatically terminate by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee or licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise or license may be reinstated within that 120-day period, if: (1) such assignment, receivership or trusteeship has been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and conditions of this title and the franchise or license and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this title and the franchise or license. However, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee or licensee, the city may revoke the franchise or license, following a public hearing before the city council, by serving notice upon the franchisee or licensee and the successful bidder at the sale, in which event the franchise or license and all rights and privileges of the franchise or license will be revoked and will terminate 30 calendar days after serving such notice, unless: (1) the city has approved the transfer of the franchise or license to the successful bidder; and (2) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise or license and this title.
(Ord. 1402 § 1(11.01.8.5), 2001)
Upon termination or forfeiture of a license or franchise, whether by action of the city as provided above, or by passage of time, the franchisee or licensee shall be obligated to cease using the communications system for the purposes authorized by the franchise. The city may either take possession of some or all of the licensee's or franchisee's facilities in the public rights-of-way or require the licensee or franchisee or its bonding company to remove some or all of the licensee's or franchisee's facilities from the public rights-of-way and restore the public rights-of-way to its same, or better, condition. Should the franchisee or licensee neglect, refuse, or fail to remove such facility, the city may remove the facility at the expense of the franchisee or licensee. The obligation of the licensee or franchisee to remove shall survive the termination of the franchise or license for a period of two years; provided, that this provision does not permit the city to take possession of, or require the franchisee or licensee to remove, any facilities that are used to provide another service for which the franchisee holds a valid franchise or license issued by the city.
(Ord. 1402 § 1(11.01.8.6), 2001)
All remedies under this title and any franchise or license are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a communications system operator of its obligations to comply with its franchise or license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a communications system operator's duty to indemnify the city in any way, nor shall such recovery relieve a communications system operator of its obligations under a franchise, permit or license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have.
(Ord. 1402 § 1(11.01.8.7), 2001)
A. 
Each communications system operator shall provide the city access to all books and records related in whole or in part to the construction, operation, or repair of the communications system so that the city may inspect and copy these books and records pertaining to the franchise and other matters within the city's jurisdiction. The operators' obligation includes the obligation to produce all books and records related to revenues derived from the operation of the communications system to the extent that system revenues affect the fees charged or burdens imposed on the operator under the franchise. An operator is responsible for obtaining or maintaining the necessary possession or control of all such books and records related to the construction, operation or repair of the communications system, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that (1) any record that is a public record must be maintained for no less than the period required by state law, and (2) a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. In the event a communication system operator is required to provide information that is a business or trade secret and/or proprietary information and the operator wishes to protect the information against disclosure, then the operator shall provide said information to the city in a separate envelope marked "Proprietary Information: DO NOT DISCLOSE." The city will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that is designated as such; provided further, that (1) in the event a public disclosure request is made for information marked as proprietary, and if the city attorney determines that said information may be subject to being disclosed, or (2) the city determines that the information should be disclosed in connection with its enforcement of any provision of this title, or in the exercise of its police or regulatory powers, then the city shall notify the operator of the operator's opportunity to seek a protective order from a court with appropriate jurisdiction. In the event that a protective order is not obtained within 30 days or, if shorter, the time limitation set forth in state law, then city may disclose said information. The operator is obligated to reimburse and indemnify the city for all costs, damages and attorney fees that may be awarded or assessed by the court for any actions the city took at the request of operator.
B. 
For purposes of this title, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at the location designated by the city manager, or by agreement or pursuant to subsection C of this section.
C. 
If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a communications facility operator may request that the inspection take place at some other location mutually agreed to by the city and the operator; provided, that (1) the operator must make necessary arrangements for copying documents selected by the city after its review; and (2) the operator must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.
D. 
Without limiting the foregoing, the operator of a communications facility shall provide the city the following within 10 days of their receipt or (in the case of documents created by the operator or its affiliate) filing:
1. 
Notices of deficiency or forfeiture related to the operation of the communications facility; and
2. 
Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.
(Ord. 1402 § 1(11.01.8.8), 2001)
Each communications facility operator shall take all reasonable steps required, if any, to ensure that it is able to provide the city all information which must be provided or may be requested under this title, a franchise or license, or applicable law, including by providing appropriate subscriber privacy notices. Each operator shall be responsible for redacting any data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require an operator to violate state or federal law protecting subscriber privacy.
(Ord. 1402 § 1(11.01.8.9), 2001)
The city manager may require operators of communications facilities to maintain records, and to prepare reports relevant to determining the compliance of the communications facility operator with the terms and conditions of this title and their franchises, permits or licenses which have been obtained from the city. Operators shall maintain such records and provide such reports additionally as are specifically required by Chapters 11.01, 11.02, 11.03, and 11.04 FMC.
(Ord. 1402 § 1(11.01.8.10), 2001)
Each communications facility operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. The operator of each communications facility shall provide a map (on 24-inch by 36-inch mylar) to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer. New system maps shall be promptly submitted to the city when the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the city engineer or in such alternate form as approved by the city engineer.
(Ord. 1402 § 1(11.01.8.11), 2001)
Each franchisee and licensee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its franchise, permit or license.
(Ord. 1402 § 1(11.01.8.12), 2001)
The failure of the city to insist on timely performance or compliance by any person holding a license, permit or franchise shall not constitute a waiver of the city's right to later insist on timely performance or compliance by that person or any other person holding such a license, permit or franchise.
(Ord. 1402 § 1(11.01.8.14), 2001)
The city expressly reserves the right to amend this title and any franchise, permit or license thereunder from time to time in the exercise of its lawful powers. The provisions of this title shall not be construed to create or be a contract.
(Ord. 1402 § 1(11.01.8.15), 2001)