To be acceptable for filing, a signed original of the application shall be submitted together with an initial filing of fifteen (15) copies. The application must be accompanied by the required application filing fee as set forth in SJBMC 5-20-435, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
All applications accepted for filing shall be made available by the City for public inspection.
A request for proposals (“RFP”) for the grant of a franchise, including for a renewal franchise under 47 U.S.C. § 546(c), shall require, and any application submitted (other than an application submitted pursuant to 47 U.S.C. § 546(h) or this Section) shall contain, at a minimum, the following information:
(A)
Applicant Information. Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of the ten (10) largest holders of an ownership interest in the applicant and in all persons in the applicant’s direct affiliates of the applicant, and all persons having, controlling or being entitled to have or control five percent (5%) ownership chain; the names and addresses of all persons with ten percent (10%) or more ownership interest in the applicant and its affiliates in persons in the applicant’s direct ownership chain; the persons who control the applicant and its affiliates; persons in the applicant’s direct ownership chain; and all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person; persons in the applicant’s direct ownership chain;
(B)
Interest in Applicant. A list of all City employees, officials, or appointees that have any interest, direct or indirect, in the applicant or any affiliate;
(C)
Technical Ability. A demonstration of the applicant’s technical ability to construct and/or operate the proposed cable system, including identification of key personnel;
(D)
Legal Qualifications. A demonstration of the applicant’s legal qualifications to construct and/ or operate the proposed cable system, including but not limited to providing information that shows that the applicant meets the following criteria:
(1)
The applicant must be willing to comply with the provisions of this Chapter and applicable laws; and to comply with such requirements of a franchise agreement as the City may lawfully require;
(2)
The applicant must not have submitted an application for an initial or renewal franchise to the City, which was 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 (3) years preceding the submission of the application;
(3)
The applicant must not have had any cable television franchise validly revoked (including any appeals) by any franchising authority within three (3) years preceding the submission of the application;
(4)
The applicant must have the necessary authority under California law to operate a cable system;
(5)
The applicant shall not be issued a franchise if it may not hold the franchise as a matter of federal applicable law. An applicant must have, or show that it is qualified to obtain, any necessary federal or state authorizations or waivers required to operate the cable system proposed;
(6)
The applicant shall not be issued a franchise if, at any time during the five (5) years preceding the submission of the application, the applicant was convicted of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers of the cable system, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct;
(7)
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; and
(8)
The applicant shall not be issued a franchise if an elected official of the City holds a controlling interest in the applicant or an affiliate of the applicant;
(E)
Other Circumstances. Notwithstanding the foregoing, the City shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under subsection (D)(3) or (D)(6) of this Section, by virtue of the particular 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 cable systems. Nothing in this Section prevents an applicant from raising other issues with the City relevant to the consideration of the applicant’s legal qualifications under subsection (D) of this Section;
(F)
Accountant Statement. A statement prepared by a certified public accountant regarding the applicant’s financial ability to complete the construction and operation of the cable system proposed;
(G)
Prior Cable Experience. A description of the applicant’s prior experience in cable system ownership, construction, and operation, and identification of communities, cities, and counties in California in which the applicant or any of its principals have, or have had, a cable franchise or any interest therein, provided that an applicant that holds a franchise for the City and is seeking renewal of that franchise need only provide this information for other communities cities and counties in California where its franchise is scheduled to expire in the two (2) calendar years prior to or after during the twelve (12) month period prior to the date its application is submitted to the City; and for other cities and counties in California where its franchise had been scheduled to expire during the twelve (12) month period after the date its application is submitted to the City. If an applicant has no other franchise in California, it shall provide the information for its operations in other states;
(H)
Proposed Franchise Area. 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;
(I)
Facilities Description. A detailed description of the physical facilities proposed, including channel capacity, headend, and technical design, performance characteristics, institutional network, headend, and PEG access facilities;
(J)
Construction Description. Where applicable, a description of the construction of the proposed cable system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;
(K)
Rate Structure. The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;
(L)
Community Needs. A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educational, and governmental use of the cable system (including institutional networks) applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community;
(M)
Pro Formas. Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;
(N)
Existing Cable Franchise. If the applicant proposes to provide cable service to an area already served by an existing cable franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area that would encompass the overbuild, and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional system;
(O)
Information Regarding Compliance. Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this Chapter;
(P)
Additional Information. Information that the City may request of the applicant that is relevant to the City’s consideration of the application; and
(Q)
Affidavit. An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all requirements of applicable law.
(A)
RFP Request. A person may apply for a franchise by submitting a request for issuance of a request for proposals (“RFP”) and requesting an evaluation of its application pursuant to subsection (C) of this Section. Upon receipt of a request for an RFP, the City shall, if necessary, commence a proceeding to identify the future cable-related needs and interests of the community and, upon completion of that proceeding, shall promptly issue an RFP and proposed franchise agreement along with an invitation to comment on such proposed franchise agreement, which shall be mailed to the person requesting its issuance, and any existing cable system franchisee, and made available to any other interested party. The applicant shall respond within the time directed by the City, providing the information and material set forth in this Section. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant as if set forth and required herein. The City or its designee may seek additional information from any applicant and establish deadlines for the submission of such information (which deadlines shall be not less than twenty (20) days from issuance of a request for additional information). An existing franchisee shall have the right to file comments regarding any applicant and their application, which comments shall be treated as part of the record before the City.
(B)
Unsolicited Applications. Notwithstanding the provisions of subsection (A) of this Section a person may apply for an initial franchise by submitting an unsolicited application containing the information required in SJBMC 5-20-415 and requesting an evaluation of that application pursuant to subsection (C) of this Section. Prior to evaluating that application, the City may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in subsection (C) of this Section and may seek additional applications.
(C)
Evaluation. In evaluating an application for a franchise, the City shall consider, among other things, the following factors:
(1)
The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the City;
(2)
Whether the quality of the applicant’s service under any existing franchise in the City, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;
(3)
Whether the applicant has the financial, technical, and legal qualifications to hold a cable franchise;
(4)
Whether the application satisfies any minimum requirements established by the City and is otherwise reasonable to meet the future cablerelated needs and interests of the community, taking into account the cost of meeting such needs and interests;
(5)
Whether, to the extent not considered as part of subsection (C)(4) of this Section, the applicant will provide adequate public, educational, and governmental access use capacity, facilities, or financial support;
(6)
Whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting an overbuild franchise on the ability of any existing franchisee to meet the cablerelated needs and interests of the community; and the comparative superiority or inferiority of competing applications; and
(7)
Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the City.
(D)
Approval or Denial – No Standing. If the City finds that it is in the public interest to issue a franchise considering the factors set forth above, and subject to the applicant’s entry into an appropriate franchise agreement, it shall issue a franchise. If the City denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, the City may hold one (1) or more public hearings or implement other procedures under which comments from the public on an application may be received. The City also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any Application that is incomplete or fails to respond to an RFP. This Chapter is not intended and shall not be interpreted to grant any applicant or existing franchisee standing to challenge the issuance of a franchise to another.
Applications for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. § 546. It is the proposal submitted by a franchisee under 47 U.S.C. § 546(b), and not the request for commencement of the renewal proceedings submitted under 47 U.S.C. § 546(a), that must contain the information required under SJBMC 5-20-420. If neither a franchisee nor the City activates in a timely manner, or can activate the renewal process set forth in 47 U.S.C. § 546(a) – (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. § 546(h), the provisions of SJBMC 5-20-420 shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:
(A)
If the provisions of 47 U.S.C. § 546(a) – (g) are properly invoked, the City shall issue an RFP after conducting a proceeding to review the applicant franchisee’s past performance and to identify future cable-related community needs and interests. The City shall make available for review by a franchisee the results of the City’s review and ascertainment proceedings. The City shall establish deadlines and procedures for responding to the RFP (which deadlines shall not be less than thirty (30) days after issuance of the RFP), may seek additional information from the franchisee related to applicant the City’s evaluation of the proposal given the standards for review of that proposal under applicable law, and shall establish deadlines for the submission of that additional information (which deadlines shall not be less than twenty (20) days after issuance of the request). Following receipt of the application responding to that RFP (and such additional information as may be provided in response to requests), the City Council will make a preliminary determination that the franchise should be renewed, or make a preliminary assessment that the franchise should not be renewed in accordance with the provisions renewed. This of the Cable Act applicable to that preliminary decision. The preliminary determination shall be made by resolution in accordance with the time limits established by the Cable Act. If the City Council determines that the franchise should not be renewed, and the applicant that submitted the renewal application notifies the City, either in its RFP response or within ten (10) working days of the preliminary assessment, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the City shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. If the City Council decides preliminarily to grant renewal, it shall prepare a final franchise agreement that incorporates, as appropriate, the commitments made by the applicant franchisee in the renewal application. If the applicant franchisee accepts the franchise agreement, and the final agreement is ratified by the City Council, the franchise shall be renewed. If the franchise agreement is not so accepted and ratified within the time limits established by 47 U.S.C. § 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the applicant that submitted the renewal application franchisee requests it within ten (10) business days of the expiration of the time limit established by 47 U.S.C. § 546(c)(1), unless the time limit is extended by mutual agreement of the City and the franchisee.
(B)
Administrative Hearing. If an administrative hearing is commenced pursuant to 47 U.S.C. § 546(c), the applicant’s renewal application shall be evaluated considering such matters as may be considered consistent with federal law. The following procedures shall apply:
(1)
The City Council shall, by resolution, appoint an administrative hearing officer or officers (referred to hereafter as “hearing officer”). The City Council may appoint itself as hearing officer.
(2)
The proceeding shall be conducted with all deliberate speed in accordance with such lawful procedures as the City may adopt by resolution. The hearing officer shall establish a schedule for proceeding which allows for documentary discovery and interrogatory responses, production of evidence, and cross-examination of witnesses. Depositions shall not be permitted unless the party requesting the deposition shows that documentary discovery and interrogatory responses will not provide it an adequate opportunity to require the production of evidence necessary to present its case proceeding. The hearing officer shall have the authority to require the production of evidence from any person as the interests of justice may require, including to require any order regarding the production of evidence by the applicant that submitted the renewal application and any entity that owns or controls or is owned or controlled by, or under common control with, such applicant directly or indirectly. The hearing officer may issue protective orders, but shall not prohibit discovery on the ground that evidence sought is proprietary or involves business secrets. Any order may be enforced by a court of competent jurisdiction or by imposing appropriate sanctions in the administrative hearing.
(3)
The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by nonparties is not authorized except to the extent required by the Cable Act.
(4)
The hearing officer shall require the City and the applicant/franchisee to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the applicant franchisee shall present evidence first, and the City shall present evidence second.
(5)
Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. § 546(a) shall be, for purposes of the administrative hearing, regarded no differently than any other evidence. The City and the applicant/franchisee shall be afforded full procedural protection regarding evidence related to these proceedings, including the right to refute any evidence introduced in these proceedings or sought to be introduced by the other party. Both shall have the opportunity for full participation in the proceeding, including the right to introduce evidence (including evidence related to issues raised in the proceeding conducted pursuant to 47 U.S.C. § 546(a)), to require the production of evidence, and to question witnesses.
(6)
Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the City is entitled to consider in determining whether renewal ought to be granted. Based on the entire record of the administrative hearing, the hearing officer shall then prepare written findings with respect to those matters, and submit those findings to the City Council and to the parties (unless the hearing officer is the City Council, in which case the written findings shall constitute the final decision of the City).
(7)
If the hearing officer is not the City Council, the parties shall have thirty (30) days from the date the findings are submitted to the City Council to file exceptions to those findings. The City Council shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the City Council shall be provided promptly to the applicant.
(8)
The proceeding shall be conducted with all deliberate speed. In conducting the proceedings, and except as inconsistent with the foregoing, the hearing officer will follow the State of California Administrative Procedures Act, or the successor statutes thereto. The hearing officer may request that the City Council adopt additional procedures and requirements as necessary in the interest of justice.
(C)
Informal Renewal Application. This Section does not prohibit any franchisee from submitting an informal renewal application pursuant to 47 U.S.C. § 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. § 546(h). If such an informal renewal application is granted, then the steps specified in subsections (A) and (B)(1) through (B)(7) of this Section need not be taken, notwithstanding the provisions of those subsections.
An application for modification of a franchise agreement shall include, at minimum, the following information:
(A)
The specific modification requested;
(B)
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, inter alia, submission of pro forma financial statements;
(D)
Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and
(E)
An affidavit or 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.
(A)
To be acceptable for filing, an application submitted after the effective date of this Chapter shall be accompanied by all filing fees required by and in such amounts as shall be set by resolution of the City Council.
An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given an 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 in accordance with applicable law, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
The provisions of this Article shall be read and applied so that they are consistent with Section 626 of the Cable Act, 47 U.S.C. § 546.