(1) Written application.
(A) A written application shall be filed with the city for grant of an initial franchise; renewal of a franchise under 47 USC 546(a)-(g); or modification of a franchise agreement pursuant to this chapter or a franchise agreement. A request for renewal may also be filed informally, pursuant to 47 USC 546(h), as provided in Section 5-24(5).
(2) Contents of applications. A request for proposals for a franchise, including for a renewal franchise under 47 USC 546(c), shall require, and any application submitted pursuant to this Section 5-24(1) (and expressly not an informal renewal application submitted pursuant to 47 USC 546(h)) shall contain, at a minimum, the following information:
(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) 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.
(C) A detailed description of the physical facilities proposed, which shall include at least the following:
1. A description of the channel capacity, technical design, performance characteristics, head-end, access (and institutional network) facilities and equipment.
2. The location of proposed facility and facility design, including a description of the miles of plant to be installed, where it is to be located, and the size of facilities and equipment that will be located in, on, over, or above the rights-of-way.
3. A description of the manner in which the system will be installed, and the time required to construct the system, and the expected effect on rights-of-way usage, including information on the ability of the 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.
4. 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) 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.
(E) A demonstration of the financial qualifications of the applicant, including at least the following:
1. The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;
2. A financial statement attested to by a certified public accountant demonstrating the applicant's financial ability to complete the construction and operation of the cable system proposed; and
3. 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.
(F) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system;
(G) Proof 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 article;
3. Was not a convicted vendor thirty- six (36) months or fewer prior to the date of the application pursuant to Chapter 287, Florida Statutes, or was removed from the convicted vendor list pursuant to Section 287.133, Florida Statutes;
4. Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its facilities; and has not entered into any agreement that would prevent it from doing so; and
5. 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.
The city shall provide a reasonable opportunity to an applicant to show that it would be inappropriate to deny it a franchise under Section 5-24(2)(G)2., 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 a cable system.
(H) 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 pursuant to Sections 5-24(2)(E) and (F) should be provided for that person.
(I) A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of cities and counties in Florida in which the applicant or any of its principals have 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 cities and counties in Florida where its franchise is scheduled to expire during the twelve (12) month period prior to the date its application is submitted to the city and for other cities and counties in Florida 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 Florida, it shall provide the information for its operations in other states.
(J) 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.
(3) Procedure for applying for grant of a franchise, other than a Cable Act renewal franchise.
(A) A person may apply for a franchise in response to a request for proposals ("RFP") issued by the city. Any response to an RFP shall contain the information required by Section 5-24(2), and such other information as the RFP may require, and must be submitted in accordance with the restrictions in the RFP. A properly filed response to an RFP shall be evaluated in accordance with Section 5-24(3)(C). The city may conduct such investigations from time to time as may be appropriate to establish RFP requirements.
(B) Notwithstanding the provisions of Section 5-24(3)(A), a person may apply for an initial franchise by submitting an unsolicited application containing the information required in Section 5-24(2) and requesting an evaluation of that application pursuant to Section 5-24(3)(C). 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 Section 5-24(3)(C), including by commencing a proceeding to identify the future cable-related needs and interests of the community. It also may seek additional applications prior to evaluating the application. An applicant for an initial franchise shall be provided an opportunity to amend its application in light of the result of any investigation conducted by the city, prior to evaluation of that application pursuant to Section 5-24(3)(C).
(C) 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 under this article or in the RFP or 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;
5. Whether, to the extent not considered as part of Section 5-24(3)(C)4., the applicant will provide adequate public, educational, and governmental 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 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 rights-of-way; 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) 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 shall hold one or more public hearings or implement other procedures under which comments from the public on an application may be received as required by state or federal statute. The city also may grant 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.
(4) Procedure for applying for grant of a Cable Act renewal franchise. Requests 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. It is the proposal submitted by a franchisee under 47 USC 546(b), and not the request for commencement of the renewal proceedings submitted under 47 USC 546(a), that must contain the information required under Section 5-24(2). If neither a franchisee nor the city activates in a timely manner, or can activate the renewal process set forth in 47 USC 546(a)-(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 USC 546(h), the provisions of Section 5-24(3) 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 USC 546(a)-(g) are properly invoked, the city shall issue an RFP after conducting a proceeding to review the 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, may seek additional information from the franchisee related to 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. Following receipt of the application responding to that RFP (and such additional information as may be provided in response to requests), the city commission will determine that the franchise should be renewed, or make a preliminary assessment that the franchise should not be renewed in accordance with the provisions of the Cable Act applicable to that preliminary decision. The preliminary determination shall be made by resolution. If the city commission determines that the franchise should not be renewed, and the franchisee notifies the city, either in its RFP response or within thirty (30) business 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 commission decides preliminarily to grant renewal, it shall prepare a final franchise agreement that incorporates, as appropriate, the commitments made by the franchisee in the application. If the franchisee accepts the franchise agreement, and the final agreement is approved by the city commission, the franchise shall be renewed. If the franchise agreement is not so accepted and approved within the time limits established by 47 USC 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the franchisee requests it within thirty (30) business days of the expiration of the time limit established by 47 USC 546(c)(1), unless the time limit is extended by mutual agreement of the city and the franchisee.
(B) If an administrative hearing is commenced pursuant to 47 USC 546(c), the franchisee’s application shall be evaluated considering such matters as may be considered consistent with federal law. The following procedures shall apply:
1. The proceeding shall be conducted with all deliberate speed in accordance with such lawful procedures as the city may adopt by resolution.
2. The City Commission may appoint an administrative hearing officer or officers or may conduct the administrative hearing itself. The entity that will conduct the administrative hearing is referred to as the "hearing officer."
3. The hearing officer shall establish a schedule for proceeding. The hearing officer shall have the authority to require the production of evidence from any person as the interests of justice may require. Any order regarding the production of evidence may be enforced by a court of competent jurisdiction or by imposing appropriate sanctions in the administrative hearing.
4. The hearing officer may conduct a pre-hearing conference and establish appropriate pre- hearing orders. Intervention by non-parties is not authorized except to the extent required by the Cable Act.
5. The hearing officer shall require the city and the franchisee to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the franchisee shall present evidence first, and the city shall present evidence second.
6. Any reports or the transcript or summary of any proceedings conducted pursuant to 47 USC 546(a) shall be, for purposes of the administrative hearing, regarded no differently than any other evidence. The city and the franchisee shall be afforded fair opportunity for full participation in the proceeding, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection 47 USC 546(a)), to require the production of evidence, and to question witnesses.
7. 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, and submit those findings to the city commission and to the parties (unless the hearing officer is the city commission, in which case the written findings shall constitute the final decision of the city).
8. If the hearing officer is not the city commission, the parties shall have thirty (30) calendar days from the date the findings are submitted to the city commission to file exceptions to those findings. The city commission 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 commission shall be provided promptly to the applicant.
(5) Informal applications for renewal. Notwithstanding the above, a cable operator may submit a proposal for renewal of a franchise pursuant to 47 USC 546(h) at any time, and the city may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal. An application shall not be granted unless the city determines that it is in the public interest to do so. An application may be denied for any reason, without prejudice to the applicant's right to seek renewal under other provisions of this section.
(6) Application for modification of a franchise.
(A) An application for modification of a franchise agreement shall include, at minimum, the following information:
1. The specific modification requested;
2. 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.
3. A statement indicating 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;
4. Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and
5. 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.
(B) A request for modification submitted pursuant to 47 USC 545 shall be considered in accordance with the requirements of that section.
(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 a reasonable 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, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
(Ord. No. 00-31, § 1, 6-20-00) Penalty, see Section 5-11