Section 27.070 Applications for Grant, Renewal, or Modification of Franchises.

27.070 Applications for Grant, Renewal, or Modification of Franchises.

(1) Written Application.

(a) A written application shall be filed with the City for (1) grant of an initial franchise; (2) renewal of a franchise under 47 USC 546(a) through (g); or (3) modification of a franchise agreement pursuant to this chapter or a franchise agreement. An applicant shall demonstrate in its application compliance with all requirements of this chapter and all applicable laws.

(b) To be acceptable for filing, a signed original of the application shall be submitted together with 12 copies. The application must be accompanied by the required application filing fee as set forth in subsection (6) of this section, 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.

(2) Application for Grant of a Franchise, Other Than a Cable Act Renewal Franchise.

(a) 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 (2)(c) of this section. Upon receipt of a request for an RFP, the City shall 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, which shall be provided to the person requesting its issuance. The applicant shall respond within the time directed by the City, providing the information and material set forth in subsection (4) of 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.

(b) Notwithstanding the provisions of subsection (2)(a) of this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in subsection (4) of this section and requesting an evaluation of that application pursuant to subsection (2)(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 (2)(c) of this section and may seek additional applications.

1. Whether the applicant has the financial, technical and legal qualifications to provide cable service.

2. Whether the application satisfies any minimum requirements established by the City and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests.

3. Whether, to the extent not considered as part of subsection (2)(c)(2) of this section, the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support.

4. Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on the streets 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 streets; the effect of granting a franchise on the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications.

5. Whether the applicant or an affiliate of the applicant owns or controls any other cable system in the City, or whether grant of the application may eliminate or reduce competition in the delivery of cable service in the City.

(d) If the City finds that it is in the public interest to issue a franchise considering the factors set forth in subsection (2)(c) of this section, 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 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.

(3) Application for Grant of a Cable Act Renewal Franchise. Applications for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 USC 546, under procedures established by the Common Council.

(4) Contents of Applications. An RFP for the grant of a franchise, including for a renewal franchise under 47 USC 546(c), shall require, and any application submitted (other than an application submitted pursuant to 47 USC 546(h)) shall contain, at a minimum, the following information:

(a) Name and address of the applicant and identification of the ownership and control of the applicant, including: all persons with five percent or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person.

(b) A demonstration of the applicant’s technical ability to construct and/or operate the proposed cable system, including identification of key personnel.

(c) A demonstration of the applicant’s legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:

1. The applicant must not have submitted an application for an initial or renewal franchise to the City under subsection (2) of this section or an application for renewal under subsection (3) of this section which was finally denied pursuant to the procedures set forth in those sections on the grounds that the applicant failed to propose a system meeting the cable-related needs and interests of the community, or as to which any challenges to such final licensing decision were finally resolved adversely to the applicant, within three years preceding the submission of the application.

2. The applicant must not have had any cable television franchise validly revoked by any licensing authority and any appeal finally resolved adversely to the applicant’s interests within three years preceding the submission of the application.

3. The applicant must have the necessary authority under Wisconsin law to operate a cable system.

4. The applicant shall not be issued a franchise if it may not hold the franchise as a matter of Federal law. An applicant must have, or show that it is qualified to obtain, the necessary Federal licenses or waivers required to operate the system proposed.

5. The applicant shall not be issued a franchise if, at any time during the 10 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.

6. 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.

7. 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.

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 (4)(c)(2) or (5) 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 television systems.

(d) 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.

(e) A description of the applicant’s prior experience in cable system ownership, construction, and operation, and identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or 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 where its franchise was scheduled to expire in the two calendar years prior to and after its application was submitted.

(f) 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.

(g) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, head-end, and access facilities.

(h) Where applicable, a description of the construction of the proposed 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.

(i) The proposed or existing rate structure, including projected charges for each service tier, installation, converters, and other equipment or services.

(j) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for the City, and how the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support to meet the community’s needs and interests.

(k) 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.

(l) If the applicant proposes to provide cable service to an area already served by an existing cable franchise, 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.

(m) Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter.

(n) Information that the City may request of the applicant that is relevant to the City’s consideration of the application.

(o) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all Federal and State law requirements.

(5) Application for Modification of a Franchise. 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 financial pro formas;

(c) A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 USC 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 USC 545;

(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 authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all Federal and State law.

(6) Filing Fees. To be acceptable for filing, an application submitted after the effective date of the ordinance codified in this chapter shall be accompanied by a filing fee in the following amount to cover costs incidental to the awarding or enforcement of the franchise, as appropriate:

(a) For an initial franchise:

1. A request for issuance of an RFP: $5,000.

2. A response to an RFP or an unsolicited application: $25,000.

(b) For renewal or an extension of a franchise: $30,000.

(7) Public Hearings. 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 reasonable notice to the public, at which every applicant and its applications shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.

[Prior code § 27.07]