§ 11.144 VARIANCE PROCEDURE.
   (A)   Purpose.
      (1)   It is the purpose of this section to establish a process that will enable the city and grantee flexibility in the administration and enforcement of this franchise without the need for costly ordinance amendments and delays. Because the term of this franchise is lengthy, changes and modifications may be needed because of the rapid changes occurring in the cable communications industry.
      (2)   The franchise and grantee's proposal are complex and subject to extensive regulation and it is not possible to delineate the numerous possible areas in which administrative action or an administrative variance shall be required. Therefore, except as otherwise provided for in this franchise and grantee's proposal, where a specific provision permits a change, alteration or substitution, any change, alteration or substitution shall be made only after compliance with the provisions of this section.
   (B)   Subjects of this section that may be considered without ordinance amendment.
      (1)   Construction techniques, equipment, materials; and/ or the design and development of buildings, appurtenances, or other real or personal property incident to the cable system;
      (2)   System design and configuration, technical standards, performance tests and maintenance procedures;
      (3)   Services and programming tiers;
      (4)   Public access or local origination equipment, personnel, facilities, and operating procedures;
      (5)   Subscriber practices, including complaint procedures, subscriber contracts, repair service, and information to subscribers; and
      (6)   Amounts of insurance, performance bonds, security deposits or letters of credit, and accrued interest.
   (C)   Procedure.
      (1)   Notice. A notice pursuant to § 11.107 shall be given by the city or grantee of any change, alteration or substitution as required in division (B) of this section. If notice is given by the city, the City Manager shall furnish notice to grantee.
      (2)   Application. Applications for variance shall be filed with the City Manager. The City Manager shall forward the application to the chairperson of the Columbia Heights/Hilltop Cable Communications Commission. The Commission shall review the application as soon as the Commission finds it timely and practicable. The Commission may adjourn consideration of the application from time to time and, upon concluding its consideration of the said application, shall prepare written findings and recommendations concerning the application.
      (3)   Criteria. The Commission shall consider the following:
         (a)   The requested variance is a minor deviation from the franchise and is consistent with the franchise in the sole judgment of the city.
         (b)   Application of the literal provisions of the franchise will result in a hardship to the applicant and to grant a variance would not be detrimental to other affected parties.
         (c)   Due to expense or delay it would be unreasonable to perfect such change by ordinance amendment.
         (d)   Undue delay, expense or other adverse results will not occur by approval of the required variance.
         (e)   If a variance is because of technical or cost reasons, the variance will result in equal or better technical standards or cost efficiency.
      (4)   Findings requirement. Before recommending that a variance be approved, the Commission must find that at least three of the above five criteria are met, and that the variance will not result in a deviation from the requirements of the MCCB, FCC or any other rule of law.
   (D)   Council approval. The findings and recommendations of the Commission shall be forwarded to the City Council of the city affected by the variance. The Council shall approve the variance, deny the variance, or refer the application back to the Commission for further study. No variance request shall be effective until approved by the City Council of the city affected by the variance. Where both cities are affected, a variance request shall not be effective until approved by both City Councils. The grantee must consent to all variances.
(Ord. 1021, passed 11-8-82)