Chapter 11.03
SPECIAL RULES APPLICABLE TO
OPEN VIDEO SYSTEMS
Sections:
11.03.010 Contents of application for initial or renewal franchise.
11.03.020 Additional information regarding affiliates – Presumptions.
11.03.030 Applications for transfer.
11.03.010 Contents of application for initial or renewal franchise.
In order to obtain an initial or renewal franchise, an operator of an open video system must apply for a franchise. The application must contain the following information, and such information as the city may from time to time require:
A. Identity of the applicant, the persons who exercise working control over the applicant, and the persons who control those persons, to the ultimate parent.
B. A proposal for construction of the open video system that includes at least the following:
1. A description of the services that are to be provided over the facility.
2. Identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area’s boundaries.
3. The location of proposed facility and facility design, 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; provided, however, that, if some of the descriptive data is not available at the time of application, the franchise may be issued 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; provided, further, that the foregoing proviso does not authorize the grant of a franchise where there is not sufficient information to appraise the impact of the applicant’s proposal; provided further, in the event that this subsection and subsection (B)(4) of this section require information that is a business or trade secret and/or proprietary information and the operation wishes to protect the information against disclosure, then operator shall provide said information to 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 (a) 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 (b) 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 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.
4. A map of the route the facility will follow, 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, a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, and when it will be completed, and the expected effect on right-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; provided, however, that any proprietary information required under this subsection as well as the preceding subsection shall be subject to the nondisclosure procedure prescribed in the proviso of the preceding subsection.
C. A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
D. Evidence satisfactory to the city that the applicant has the financial resources to complete the proposed project, and to construct, operate and maintain the proposed facility over the franchise term. It is not the intent of the city to require an applicant to prove that the services it proposed to offer will succeed in the marketplace.
E. Evidence satisfactory to the city that applicant is technically qualified to construct, operate and maintain the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete.
F. Evidence satisfactory to the city that the applicant is legally qualified, which proof must include a demonstration that the applicant:
1. Has received, or is in a position to receive, necessary authorizations from state and federal authorities;
2. 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 title;
3. Is willing to accept a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so.
G. An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
H. An applicant may show that it would be inappropriate to deny it a franchise under subsection (F)(2) of this section, by virtue of the particular circumstances surrounding the acts or omissions at issue, the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence, and the lack of involvement of the applicant’s principals, or the remoteness of the acts or omissions from the operation of open video system facilities. (Ord. 1402 § 1(11.03.1.1), 2001)
11.03.020 Additional information regarding affiliates – Presumptions.
To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs required by FMC 11.03.010(C) through (E) should be provided for that person. An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction, or if applicant is a holder of a franchise in the city for a cable system or open video system, and conduct under such other franchise provides no basis for additional investigation. (Ord. 1402 § 1(11.03.1.2), 2001)
11.03.030 Applications for transfer.
An application for a transfer of a franchise must contain the same information required by FMC 11.03.010, except that, if the transferor submitted an application under FMC 11.03.010, to the extent information provided by the transferor under FMC 11.03.010(B) remains accurate, the transferee may simply cross-reference the earlier application. (Ord. 1402 § 1(11.03.1.3), 2001)
11.03.040 City review.
The city may request such additional information as it finds necessary, and require such modifications to the application as may be necessary in the exercise of the city’s authority over open video systems and the use of its public rights-of-way. Once the information required by the city has been provided, the application shall be subject to review by the city and any approval will also be subject to a city determination that:
A. The applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law.
B. The applicant will accept the modifications required by the city to its proposed system. This section shall not be read to authorize the city to exercise authority it does not otherwise have under applicable law.
C. The applicant will accept a franchise satisfactory to the city and comply with any conditions precedent to its effectiveness.
D. In the case of a transfer, the approval is also subject to a determination that:
1. There will be no adverse effect on the public interest, or the city’s interest in the franchise;
2. Transferee will agree to be bound by all the conditions of the franchise and to assume all the obligations of its predecessor; and
3. Any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the city.
E. An applicant shall not be issued a franchise if it files or has previously filed materially inaccurate or misleading information in a franchise application or intentionally withheld information that the applicant lawfully is required to provide. An application for a franchise area may be denied if the franchisee has no plans for constructing a system within the entire area for which the franchise is sought. (Ord. 1402 § 1(11.03.1.4), 2001)
11.03.050 Compensation.
Every operator of an open video system shall pay compensation to the city as follows:
A. To the extent that the system is used to provide cable services: a percentage of gross revenues each month equal to the gross revenue percentage paid by any cable operator for the same month; provided, however, that, if there is no cable system operating, the percentage shall be equal to the percentage fee that would have been levied on a cable operator under Chapter 11.04 FMC, subject to any limit imposed by federal law. “Gross revenues” shall be defined to include all the gross revenues derived from the operation of an open video system to provide cable services, and, except as federal law requires otherwise, shall include the gross revenues of affiliated persons using the capacity of the open video system to provide cable service to subscribers for a fee, less amounts paid to the open video system operator to the extent the operator pays a fee on such revenues. In addition, unless a franchise provides otherwise, an open video system operator (1) shall pay to the city, at a time directed by the city, an amount equal to the highest amount contributed by any entity operating a cable system for and in support of public, educational, and government use (including institutional network use) of its cable system, and (2) to the extent that such entity is providing other support for public, educational or governmental use, the operator must duplicate that support within a time and in a manner directed by the city, or provide a cash equivalent acceptable to the city, or (3) if there is no such entity, the highest amount permitted under applicable law. In applying this section, the city may take such steps as it deems appropriate to ensure that the obligations borne by the open video system operator are no greater or lesser than the obligation imposed upon the cable operator providing the greatest benefits to the community. Further, the city reserves the right, and every franchise shall be interpreted to incorporate the right, to require the operator to pay additional compensation if the provisions of federal law specifying the compensation to be paid by operators changes or is declared invalid, or to ensure that the operator of an open video system pays no less than the highest amount paid by any cable operator.
B. To the extent that the open video system is used for the provision of telecommunications services, the open video system operator shall pay the fee required by Chapter 11.02 FMC. (Ord. 1402 § 1(11.03.2), 2001)
11.03.060 Annual reports.
No later than 90 days after the end of its fiscal year, a cable operator shall submit a written report that shall contain such information as may be required from time to time by the city, and at least the following, unless the city waives the requirement:
A. A summary of the previous year’s activities in the development of the open video system, including descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of cable service;
B. A revenue report from the previous calendar year for the open video system, certified by the operator’s chief financial officer;
C. An ownership report, indicating all persons who at the time of filing control or own an interest in the open video system operator of 10 percent or more;
D. A list of officers and members of the board of directors of the franchisee and any affiliates directly involved in the operation or the maintenance of the open video system;
E. An annual report of each entity identified in subsection D of this section which issues an annual report;
F. A complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year categorized as aerial and underground, identify any cases where subscribers contributed to plant extension, provide revisions to the open video system maps filed with the city, and report the results of appropriate electronic measurements to show conformity with FCC technical standards;
G. Once the information required by subsections A through F of this section has been filed, it need be refiled only if it changes. (Ord. 1402 § 1(11.03.3), 2001)