(B) Application required.
(1) Before commencing the delivery of video programming services to consumers in the city over an open video system, the open video system operator must file an application with the city. That application must include or be accompanied by the following, as applicable:
(a) The identity of the applicant, including all affiliates of the applicant.
(b) Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR 76.1503(b)(1), and the order of the FCC, all of which relate to certification of the applicant to operate an open video system in the city in accordance with Section 653(a)(1) of the Communications Act and the FCC's rules.
(c) The area or areas of the city that the applicant proposes to serve.
(d) A description of the open video system services that will be offered by the applicant over its existing or proposed facilities.
(e) A description of the transmission medium that will be, used by the applicant to deliver the open video system services.
(f) Information in sufficient detail to establish the applicant's technical qualifications; experience, and expertise regarding the ownership and operation of the open video system described in the application.
(g) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to:
1. Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the city.
2. Comply with the city's public, educational, and governmental access requirements as specified below in § 5.14.030(D)(2)(d).
3. Comply with the city's requirement that gross revenue fees be paid in the sum of 5%, as specified below in § 5.14.030(D)(2)(b).
(h) An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use, to purchase, or to lease.
(i) If the applicant's operation of the open video system will require the construction of new physical plant in the city, the following additional information must be provided:
1. A preliminary construction schedule and completion dates.
2. Preliminary engineering plans, specifications, and a network map of any new facilities to be constructed in the city, in sufficient detail to identify:
a. The location and route requested for the applicant's proposed facilities.
b. The locations, if any, for interconnection with the facilities of other video or telecommunications service providers.
c. The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis.
3. The applicant's statement that, in constructing any new physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of the city, including the payment of all required permit and processing fees.
(j) The information and documentation that is required to be submitted to the city by a video provider, as specified below in § 5.14.040(B)(2).
(k) Such additional information as may be requested by the city to evaluate the applicant's qualifications.
(l) An application fee deposit in an amount established by resolution of the City Council.
(2) If any item of information specified above in § 5.14.030(B)(1) is determined under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that such information be included in the application.
(C) Review of the application. Within 30 days after receipt of an application filed under § 5.14.030(B) that is deemed to be complete, the City Manager will give written notice to the applicant of the city's intent to negotiate an agreement, setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the city. The commencement of those negotiations will be on a date that is mutually acceptable to the city and to the applicant.
(D) Agreement required.
(1) No video programming services may be provided in the city by an open video system operator unless the operator and the city have executed a written agreement, which may be designated as a franchise, setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the city. That agreement may be authorized and approved by resolution of the City Council.
(2) The agreement between the city and the open video system operator may contain terms and conditions that relate to the following subject matters, to the extent that such terms, conditions, and subject matters are not preempted by federal law or regulations:
(a) The nature, scope, and duration of the agreement, including provisions for its renewal or extension.
(b) The obligation of the open video system operator to pay to the city, at specified times and in lieu of the franchise fees permitted under Section 622 of the Communications Act, fees on the gross revenue received by the operator, as authorized by 47 CFR 76.1511, in accordance with the following standards and procedures:
1. The amount of the fees on the gross revenue will be the maximum amount authorized by Section 653(c)(2)(B) of the Communications Act, which is the rate imposed by the city on the existing franchised cable operator.
2. The term "gross revenue" means (i) all gross revenue received by an open video system operator or its affiliates, including all revenue received from subscribers and all carriage revenue received from unaffiliated video programming providers; and (ii) all advertising revenue received by the operator or its affiliates in connection with the provision of video programming, where such revenue is included in the calculation of the cable franchise fee paid to the city by the incumbent franchised cable operator. The term "gross revenue" does not include revenue, such as subscriber or advertising revenue, collected by unaffiliated video programming providers.
(c) The obligation of the open video system operator to comply with requirements relating to information collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the gross revenue that are required to be paid as specified above in § 5.14.030(D)(2)(b).
(d) The obligation of the open video system operator to meet the city's requirements with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment, as provided for in 47 CFR 76.1505. In this regard, the following standards and procedures apply:
1. The open video system operator is subject to the same public, educational, and governmental access requirements that apply within the cable television franchise service area with which its system overlaps.
2. The open video system operator must ensure that all subscribers receive all public, educational, and governmental access channels within the franchise service area in which the city's subscribers are located.
3. The open video system operator may negotiate with the city to establish the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment. These negotiations may include the city's franchised cable operator if the city, the open video system operator, and the franchised cable operator so desire.
4. If the open video system operator and the city are unable to reach an agreement regarding the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment within the city's jurisdiction, then the following obligations will be imposed:
a. The open video system operator must satisfy the same public, educational, and governmental access obligations as the city's franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the city's franchised cable operator's annual financial contributions in support of public, educational, and governmental access services, facilities, and equipment that are actually used by the city. For in-kind contributions, such as cameras or production studios, the open video system operator may satisfy its statutory obligation by negotiating mutually agreeable terms with the city's franchised cable operator, so that public, educational, and governmental access services to the city are improved or increased. If such terms cannot be agreed upon, the open video system operator must pay to the city the monetary equivalent of the franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the annual amortization value. Any matching contributions provided by the open video system operator must be used to fund activities arising under Section 611 of the Communications Act.
b. The city will impose upon the open video system operator the same rules and procedures that it imposes upon the franchised cable operator with regard to the open video system operator's use of channel capacity designated for public, educational, and governmental access use when that capacity is not being used for such purposes.
5. The city's franchised cable operator is required under federal law to permit the open video system operator to connect with its public, educational, and governmental access channel feeds. The open video system operator and the franchised cable operator may decide how to accomplish this connection, taking into consideration the physical and technical characteristics of the cable and the open video systems involved. If the franchised cable operator and the open video system operator cannot agree on how to accomplish the connection, the city has the right to decide. The city may require that the connection occur on city-owned property or on public rights-of-way.
6. All costs of connection to the franchised cable operator's public, educational, and governmental access channel feed must be borne by the open video system operator. These costs will be counted towards the open video system operator's matching financial contributions set forth above in division (D)(2)(d)4.a.
7. The city will not impose upon the open video system operator any public, educational, or governmental access obligations that are greater than those imposed upon the franchised cable operator.
8. If there is no existing franchised cable operator, the provisions of 47 CFR 76.1505(d)(6) will be applicable in determining the obligations of the open video system operator.
9. The open video system operator must adjust its system to comply with new public, educational, and access obligations imposed on the city's franchised cable operator following a renewal of the cable television franchise; provided, however, that the open video system operator will not be required to displace other programmers using its open video system to accommodate public, educational, and governmental access channels. The open video system operator must comply with those new public, educational, and governmental access obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand for channel capacity.
(e) If the city and the open video system operator cannot agree on the application of the FCC's rules regarding the open video system operator's obligations to provide public, educational, and governmental access under the provisions of § 5.14.030(D)(2)(d) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR 76.1514. No agreement will be executed by the city until the dispute has been finally resolved.
(f) If the open video system operator intends to maintain an institutional network, as defined in Section 611(f) of the Communications Act, the city will require that educational and governmental access channels be designated on that institutional network to the same extent that those channels are designated on the institutional network of the city's franchised cable operator. In addition, to the extent authorized by federal law, the open video system operator may be required by the city to satisfy the same financial obligations and other requirements that are imposed upon the franchised cable operator to support data transmission and related services that are provided by the institutional network.
(g) The authority of an open video system provider to exercise editorial control over any public, educational, or governmental use of channel capacity will be restricted in accordance with the provisions of 47 CFR 76.1505(f).
(h) The obligation of the open video system operator to comply with all applicable federal, state, and local statutes, ordinances, and regulations relating to customer protection and service standards, including the Cable Television and Video Customer Service and Information Act (Government Code §§ 53054 et seq.), the Video Customer Service Act (Government Code §§ 53088 et seq.), and § 5.14.020(E) of this chapter.
(i) If new physical plant is proposed to be constructed within the city, the obligation of the open video system operator to comply with the following right-of-way use and management responsibilities that are also imposed by the city upon other cable television and telecommunications service providers in a nondiscriminatory and competitively neutral manner:
2. The coordination of construction activities.
3. Compliance with established standards and procedures for constructing lines across private property.
4. Compliance with all applicable insurance and indemnification requirements.
5. The repair and resurfacing of construction-damaged streets.
6. Compliance with all public safety requirements that are applicable to cable television and telecommunications service providers using public property or public rights-of-way.
(j) Acts or omissions constituting breaches or defaults of the agreement, and the applicable penalties, liquidated damages, and other remedies, including fines or the suspension, revocation, or termination of the agreement.
(k) Requirements relating to the sale, assignment, or transfer of control of the open video system.
(l) Requirements relating to the open video system operator's compliance with and implementation of state and federal laws, rules, and regulations pertaining to the operation of the open video system.
(m) Such additional requirements, conditions, terms, policies, and procedures as may be mutually agreed upon by the city and the open video system operator and that will, in the judgment of the City Council, best serve the public interest and protect the public health, welfare, and safety.
(Ord. 2582 § 3, 2002.)