A.
Any person desiring an initial franchise for a cable
television system shall file an application with the City in accordance with
the provisions of this section.
B.
An application for an initial franchise for a cable television
system shall contain, where applicable:
(1)
A statement as to the proposed franchise and service
area.
(2)
A resume of the prior history of the applicant, including
the legal, technical and financial expertise of the applicant in the cable
television field.
(3)
A list of the partners, general and limited, of the applicant,
if a partnership, or the percentage of stock owned or controlled by each shareholder,
if a corporation.
(4)
A list of the officers, directors and managing employees
of the applicant, together with a description of the background of each such
person.
(5)
The names and addresses of any parent or subsidiary of
the applicant or any other business entity owning or controlling the applicant
in whole or in part, or owned or controlled in whole or in part by the applicant.
(6)
A current financial statement of the applicant verified
by a certified public accountant audit or otherwise certified to be complete
and correct to the reasonable satisfaction of the City.
(7)
A proposed construction and service schedule.
(8)
Any additional information that the City deems reasonably
necessary to determine whether the applicant has to construct, operate, and
maintain a cable television system and provide cable service in accordance
with the provisions of this chapter.
C.
A nonrefundable application fee in the amount of $3,000 shall
accompany the application. Such application fees shall not be deemed to be
franchise fees within the meaning of Section 622 of the Cable Act (47 U.S.C.
§ 542), and such payments shall not be deemed to be:
(1)
Payments in kind or any involuntary payments chargeable against the compensation to be paid to the City by a grantee pursuant to § 142-18 hereof and applicable provisions of a franchise agreement; or
(2)
Part of the compensation to be paid to the City by a grantee
pursuant to Section 622 of the Cable Act and applicable provisions of a franchise
agreement.
A.
Upon receipt of an application for a franchise in accordance with the provisions of § 142-5, the Council shall determine the applicant's qualifications to construct, operate, and maintain a cable television system and to provide cable service in accordance with the provisions of this chapter. If the Council determines that the applicant is not so qualified, it may refuse to grant the requested franchise. If the Council determines that the applicant is so qualified, it may, by ordinance, grant a franchise to such applicant, to be effective as provided in this section. No provision of this chapter may be deemed or construed to require the granting of a franchise when the Council determines that to do so would not be in the public interest.
B.
Within 30 days after the Council has taken final action
to approve the granting of a franchise, the grantee shall file with the City
Clerk a written acceptance of the conditions required for the franchise, acknowledged
before a notary public. Such acceptance shall acknowledge that the grantee
agrees to the bound by and to comply with the provisions of this chapter and
the franchise and shall be in a form approved by the City Attorney.
D.
The effective date of any franchise granted shall be
the date on which the grantee files the acceptance, bond, and proofs of insurance
as required herein. However, if any of the material required to be filed with
the acceptance or the acceptance itself is defective or fails to meet with
approval, the franchise shall not be effective until such defect is cured
or such approval is obtained.
E.
If the grantee fails to accept the franchise and file the information required under this section within the time limit set forth in Subsection B, the Council may, at any time thereafter before acceptance, summarily revoke the franchise. Written notice of such revocation shall be sent to the grantee forthwith.
Any franchise granted may be for a term of up to 20 years from the date
the Council takes final action to approve such franchise. The term of the
franchise shall be specified in the franchise.
Any franchise granted shall be nonexclusive and the rights granted are
of a personal nature. The City specifically reserves the right to grant, at
any time, such additional franchise for a cable television system or any component
thereof as it deems appropriate, subject to applicable state and federal law.
A.
The City may grant one or more franchises for a service
area. The City may, in its sole discretion, limit the number of franchises
granted, based upon, but not necessarily limited to, the requirements of applicable
law and specific local considerations, such as:
(1)
The capacity of the public rights-of-way to accommodate
multiple cables in addition to the cables, conduits and pipes of the utility
systems, such as electrical power, telephone, gas and sewage.
(2)
The impact on the community of having multiple franchises.
(3)
The disadvantages that may result from cable system competition,
such as the requirement for multiple pedestals on residents' property, and
the disruption arising from numerous excavations of the rights-of-way.
(4)
The advantages that may result from cable service competition,
such as provider choice, improved service and reduced fee for service costs.
(5)
The financial capabilities of the applicant and its guaranteed
commitment to make the necessary financial investment and to maintain and
operate the proposed system for the duration of the franchise term.
B.
Subject to the provisions of §§ 142-16 and 142-17, any additional franchise granted by the City to provide cable service in a part of the City in which a franchise has already been granted and where an existing grantee is providing service shall require the new grantee to provide service throughout its service area within a reasonable time and in a sequence which does not discriminate against lower income residents.
A.
No transfer of control of a franchise or assignment of
a franchise to operate a cable television system, other than a pro forma transfer
or assignment to a parent or wholly owned subsidiary corporation or other
form of organization, shall take place, whether by force or voluntary sale,
lease, mortgage, assignment, encumbrance, foreclosure, attachment, merger,
or other form of disposition, without prior notice to and approval by the
Council. The notice shall include full identifying particulars of the proposed
transaction, and the Council shall act by resolution. The Council shall have
125 days after the receipt of the notice and all supporting documents within
which to approve or disapprove a transfer of control or assignment of the
franchise. If the proposed transfer or assignment is not acted upon within
125 days, approval shall be deemed to have been given.
B.
Notice of any such proposed transfer or assignment, together
with copies of all documents pertaining thereto, shall be in writing and filed
with the City Clerk. The proposed transferee or assignee shall agree in writing
to comply with all provisions of this chapter and such other provisions and
requirements as the Council might require.
C.
For the purpose of this section the term "control" is
not limited to majority stock ownership but includes actual working control
in whatever manner exercised. A rebuttable presumption that a transfer of
control has occurred shall arise upon the acquisition or accumulation by any
person or group of persons of 10% of the voting shares of the grantee.
D.
In the absence of extraordinary circumstances, the Council
will not approve any transfer or assignment of the franchise before completion
of initial construction of the energized system or within the first two years
of operation thereafter.
Franchise renewals shall be in accordance with applicable law, including,
but not necessarily limited to, the Cable Act. The City and the grantee, by
mutual consent, may enter into renewal negotiations at any time during the
term of the franchise.
A.
The Council may terminate at any time any franchise granted
hereunder and rescind all rights and privileges associated therewith in the
event that:
(1)
The grantee has not complied in some material respect
with any provision of this chapter, or of any supplemental written agreement
entered into by and between the City and the grantee, or of any terms or conditions
of any franchise or permit issued hereunder;
(2)
The grantee has made a material, false statement in the
application for the franchise, knowing it to be false;
(3)
The grantee, contrary to the best interest of public
convenience and welfare, is not providing subscribers with regular, adequate,
and proper service, consistent with the terms of any franchise granted hereunder;
(4)
The grantee becomes insolvent, enters into receivership
or liquidation, files for bankruptcy or for composition of creditors, is unable
or unwilling to pay its debts as they mature or is in financial difficulty
of sufficient consequence so as to jeopardize the continued operation of the
cable television system, unless the grantee is in due process of contesting
such debts;
(5)
The grantee violates any FCC order or ruling or the order
or ruling of any other governmental body having jurisdiction over the grantee,
unless the grantee is lawfully contesting the legality or applicability of
such order; or
(6)
The operation of the cable television system is discontinued
for a continuous period of 30 days.
B.
If the City proposes to terminate for cause a franchise
granted hereunder, it shall give the grantee 60 days' written notice of its
intention to terminate and stipulate the cause. If during the sixty-day period
the cause shall be cured to the satisfaction of the City, the City shall declare
the notice to be null and void. In any event, before a franchise may be terminated
the grantee must be provided with an opportunity to be heard before the Council
in accordance with due process procedures. If a grantee's franchise is terminated,
the decision shall be subject to a judicial review as provided by law.
A.
Upon expiration or termination of a franchise, the City
may require the grantee to continue to provide service for a reasonable period
(not to exceed six months) in order to assure uninterrupted service to subscribers.
B.
Upon expiration or termination of a franchise, for so
long as the grantee continues to operate the cable television system thereafter,
the grantee shall remain subject to the provisions of the expired or terminated
franchise, unless and until a new franchise is issued to such grantee.
A.
Upon the expiration or termination of a franchise, the
Council may advertise and seek another grantee to operate the system. The
Council, in seeking a new grantee, shall use essentially the same methods
and procedures as are required to grant the initial franchise.
B.
If a franchise is granted to another person, the terminated
grantee may be required to sell the entire cable television system to the
new grantee at its fair market value as determined by three competent, independent
appraisers, one each to be appointed by the terminated grantee, the new grantee,
and the Council. The appraisers so appointed shall use the then-best methods
of appraising to determine this value. The cost of the appraisers shall be
shared equally by the terminated grantee and the new grantee. The terminated
grantee shall execute such deeds, bills of sale and other documents as may
be necessary to effectuate this sale. The terminated grantee shall fully cooperate
with these appraisers.
C.
Upon expiration or termination of a franchise, or if
a renewal of a franchise is denied, the Council shall have the option, upon
90 days' written notice to the grantee, to purchase the cable television system
at its fair market value as determined by three competent, independent appraisers,
one each to be appointed by the grantee and the City and the third to be appointed
by the other two appraisers. The appraisers so appointed shall use the then-best
methods of appraising to determine this value. The grantee and the City shall
share the expense for the appraisal equally. The grantee shall execute such
deeds, bills of sale and other documents as may be necessary to effectuate
this sale. The grantee shall fully cooperate with these appraisers.
A.
Upon the expiration or termination of a franchise, the grantee shall, not later than six months from such expiration, begin the removal of all property owned by it and placed on a public or private right-of-way, unless the grantee's cable television system property has been purchased by a successor under § 142-14, or the City (in the case of a public right-of-way) or the owner of a private right-of-way authorizes the grantee to abandon this property in place.
B.
In removing its physical plant, structures, and equipment,
the grantee shall refill, at its own expense, any excavation that shall be
made by it and shall leave such public and private places in as good condition
as that prevailing prior to the company's removal of its equipment and appliances
without affecting, altering, or disturbing in any way the electric distribution
or telephone cable, wire, or attachments or any poles. The City Manager shall
appoint a City officer or employee to inspect and approve the condition of
such public ways and public places and cables, wire attachments, and poles
after removal. Liability insurance and indemnity provided for herein shall
continue in full force and effect during the entire period of removal.
C.
Upon abandonment, which shall only be done as the City
directs, the grantee shall transfer ownership of all such abandoned property
to the City and submit to the City an instrument in writing, subject to the
approval of the City Attorney, effecting such transfer.
D.
If the City or the state is forced to remove the system,
the work shall be done at the expense of the terminated grantee.
The City may grant a franchise to a limited area grantee to authorize
such grantee to provide cable television service to commercial and residential
buildings.
