27.350 Transfers.

(1) Franchisee Ownership. Except as otherwise provided in a franchise or applicable laws and regulations, the franchisee shall, at all times during the term of a franchise and any extensions thereto or renewals thereof, be the full and complete owner of, or have complete possessory rights to, all facilities and property, real and personal, of the cable system.

(2) Transactions Involving Facilities. The franchisee shall not enter into any transaction concerning the ownership of the facilities and property, real or personal, of a cable system or any portion thereof, unless consummation of such transaction is subject to any required approval by the City hereunder. Any approval may be conditioned as required to protect the rights of the City or the public interest.

(3) Limitation. The restrictions on transfer of ownership of the facilities and property of the cable system shall not apply to disposition of worn-out or obsolete facilities or personal property in the normal course of constructing, operating, maintaining and repairing the system, provided such facilities and property are removed and replaced with facilities and property that at least perform the same functions, with at least the same reliability and quality as the facilities and property being disposed of.

(4) Other Transfers. A franchise may not be assigned or transferred, in whole or part, or leased or sublet, mortgaged or pledged in trust by any means, without prior written notice to the City, in accordance with subsection (6) of this section, and the prior written approval of the City upon its good faith determination that the transaction proposed by the franchisee will not be adverse to the interests of the City under a franchise or this chapter or otherwise contrary to the public interest. Any approval may be conditioned as required to protect the rights of the City or the public interest.

(5) What Constitutes a Transfer. A change of control or ownership of franchisee or affiliate that is involved in the operation or management of the cable system shall be considered a transfer of a franchise. The term control includes actual working control in whatever manner exercised. A transfer shall be deemed to have occurred whenever one entity or a group acting in concert acquire, directly or indirectly, a 20 percent or greater ownership interest in a franchisee. A transfer shall also be presumed to have occurred in the case of a partnership, if a general partner is changed, eliminated or added.

(6) Notice of Transfer. The franchisee and the proposed transferee jointly must notify the City in writing of any sale or transfer subject to approval under this section. At the time the notice is submitted, the franchisee and proposed transferee shall complete any application provided by the City requesting approval of the transfer and shall submit information required under applicable laws and regulations, including information requested by the City relating to the matters for consideration set forth in subsection (7) of this section. The franchisee and transferee must cooperate to provide documents and respond to requests for information by the City regarding the proposed transaction and its potential effects. The notice and information required must be provided at least 120 days before the proposed transaction is scheduled to close.

(7) Matters for Consideration. In determining whether a proposed transaction is adverse to the interests of the City under a franchise or otherwise contrary to the public interest, the City may examine the financial, technical, legal or other qualifications of the transferee, whether the transferee agrees to accept and to be bound by related amendments, ordinances, and resolutions then lawfully in effect; whether the transferee agrees to accept and be bound by each and every term of a franchise; whether the transferee agrees to accept and to be bound by related amendments, ordinances, and resolutions then lawfully in effect; whether the transferee agrees to assume all liability and responsibility for acts and omissions of franchisee, known and unknown, and to correct any defects in performance; whether the transferee agrees that the transfer will not allow it to exercise any rights which could not have been exercised by the transferor, had it continued to hold a franchise; the effect of the transaction on the terms, conditions and quality of the services provided to subscribers; the effect of the transaction on any rights of the City or subscribers under applicable law; the effect of the transfer on competition for the provision of cable services or other communications services within the franchise area; and any other matter which the City is legally entitled or required to consider.

(8) Prohibited Transfers. Notwithstanding anything herein to the contrary, the City reserves the right to prohibit any requested transfer if the proposed transferee has any ownership or control of any other cable system in the City, or in circumstances in which the City determines that the acquisition of the cable system by the transferee may eliminate or reduce competition in the delivery of cable service in the City of Manitowoc.

(9) Securing Debt. Notwithstanding the foregoing, pledges in trust or mortgages of the assets of the system to secure the construction, operation or repair of the cable system may be made without the City’s prior consent; except that no such arrangement may be made which would in any respect under any condition prevent the franchisee or any successor from complying with a franchise and applicable laws and regulations, nor may any such arrangement permit a third party to succeed to the interest of a franchisee, or to own or control a cable system without the prior consent of the City.

(10) Public Hearing – Time for Consideration. Deliberations on a request for assignment or transfer of a franchise shall include a notice and a hearing affording the public opportunity for full participation. Unless the parties agree to some other date, the City must adopt a resolution denying, approving or approving a transaction proposed subject to conditions within 120 days of the date the franchisee and transferee submit all the information reasonably required to be submitted by subsection (6) of this section. If the City does not so act, the request for approval of the transaction shall be deemed granted.

(11) Concurrence in Approval. At such time as the City may approve a proposed assignment or transfer of a franchise, such approval shall be contingent upon the concurrence of the Federal or State regulatory agencies having jurisdiction, if such concurrence is then required by law.

(12) Effect of Unlawful Transfer. Any transaction requiring prior approval that is made in violation of this section shall make a franchise subject to termination by the City.

(13) Costs. The City, as a condition of approval of a transaction, may require the transferee to bear the City’s reasonable costs associated with the review of any transfer request.

[Prior code § 27.35]