(A) Any franchised MCS provider (specifically including any MCS provider classified as a cable operator) awarded a franchise or renewal franchise after the date this chapter becomes effective shall pay to the city for the privilege and use of the streets, rights-of-way, easements, and public ways, and other facilities of the city in the operation of the multi-channel system, and for the city's supervision thereof during the term of the franchise, a sum of up to 5% of the annual gross revenues of such non-exempt franchised MCS provider.
(B) If the FCC, Congress or other governmental entity with authority over multi-channel service ever allows a governmental entity or Council/franchising authority to increase the franchise fee beyond 5%, then the Council/franchising authority shall have the authority to increase the franchise fee to the maximum rate allowable.
(C) It is intended that the franchise fees will promote the health, safety, and welfare of the citizens of the city. Therefore, the 5% franchise fee shall be deposited into the general revenue of the city, unless specifically authorized elsewhere.
(D) A franchised MCS provider shall file with the Council/franchising authority, within 60 days after the expiration of each of the franchised MCS provider's fiscal quarters, a detailed financial and revenue statement clearly showing the gross revenues received by such franchised MCS provider during the preceding quarter and certified by a certified public accountant or officer of a franchised MCS provider attesting to the accuracy, completeness, and veracity of the revenue figures. Such statement shall be in the form and format determined by the Council/franchising authority. Such statement shall include revenue from whatever source, directly or indirectly derived from, or allowed, or caused to be derived from, or applicable to the operation of the multi-channel system, or the provision of any multi-channel service by or to the multi-channel system, for those revenues and revenue sources applicable to or affecting the franchise fee or the computational base for the franchise fee. Revenue will be reported by service category, type, and level showing computations and using incremental billing rates for all sources, levels, tiers, and types of service and other revenue sources of all kinds and types.
(E) Payment of the quarterly portion of the franchise fee shall be rendered to the city at the time the financial and revenue statement is filed.
(F) In the event that full payment is not made within 45 days after the date specified in this section, then such franchised MCS provider may be declared in default of the franchise, and the franchise may be revoked, terminated, or canceled in the manner prescribed by this chapter.
(G) The Council/franchising authority reserves the right to audit a franchised MCS provider's books, if the Council/franchising authority deems it necessary. If such audit discovers an underpayment of franchise fees that exceeds 1% of the total fee paid for any reporting quarter, then the affected franchised MCS provider shall reimburse the city for the cost of such an audit. It is specifically understood that the right of audit and re-computation of any and all amounts paid under a franchise fee shall always be accorded to the Council/franchising authority. It is further understood that the Council/franchising authority shall be bound by the result of any audit it performs or causes to be performed, except for instances involving fraud.
(H) If an audit or other research discovers that franchise fees have been either underpaid or not paid for a period exceeding six months from the original due date, then the city may seek full recovery of the underpaid or non-paid fees plus interest not to exceed 15% or the maximum allowable under state law (whichever is less). The audit may cover a period not to exceed 48 months prior to the date of audit and the MCS provider is required to retain its books and records for all periods subject to audit.
(I) All annual reports due and pertaining to the payment of franchise fees will be certified by an officer of the franchised MCS provider, and such provider shall maintain records used in the preparation of the report to be produced in their originality and totality upon request or demand by the Council/franchising authority.
(J) No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of any claim that the city might have for further or additional sums payable under the terms of this chapter, or for any other performance or obligation of a franchised MCS provider hereunder.
(K) Payments of compensation made by a franchised MCS provider to the city, pursuant to the provisions of this chapter, shall be considered in addition to and exclusive of any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect, or subsequently adopted.
(L) A franchise fee does not include any items specifically excluded by federal law.
(M) Nothing in this section shall be construed to limit the authority of the Council/franchising authority to impose a tax, fee or other assessment of any kind, on any person (other than a franchised MCS provider) with respect to multi-channel service or other programming or communications service provided by such person over a multi-channel system for which charges are assessed to subscribers, but not received by a franchised MCS provider. For purposes of illustration only, this division shall include the situation(s) where a premium service directly bills a subscriber, or the franchised MCS provider merely acts as collection agent for a premium service billing directly to a subscriber, or where a person leases a channel for commercial use and sells advertising or goods on that channel, and receives the money directly or through a third party.
(N) For any 12 month period, the fees paid by any person subject to division (M) who provides any such multi-channel service shall not exceed 5% of such person's gross revenues derived in such period from the provision of such service over the multi-channel system, or the maximum allowed by law at any time.
(O) If, at any time, the highest court of the nation or the state invalidates, voids, or rules as unconstitutional the concept of franchise fees, then the Council/franchising authority may impose an alternative user charge on the franchised MCS provider in the manner set forth in this chapter.
(P) In light of division (O) of this section, and recognizing that an alternative user charge may affect a franchised MCS provider, please note that the franchise agreement may contain express language which details a different method or manner for collection of franchise fees should the way they historically have been calculated (as a percentage of gross revenues) be ruled unconstitutional or unenforceable, so that the city's source of revenue and compensation for the use of the public right-of-way may be protected.
(Ord. 4-1994-20, passed 4-12-94) Penalty, see § 112.999