(A) Purpose. To ensure that the city, as far as possible, is compensated for the rights granted, and receives fair market value for use of property over which it exercises control, or which is held in public trust; and to ensure that the city is compensated for expenses arising from the use of that property; and to ensure that similarly situated persons providing the same services are treated similarly, as far as is possible and appropriate considering differences in circumstances; the city shall require persons using its public rights-of-way to provide cable service, or open video system services to pay compensation as provided in this chapter.
(B) Every operator must pay. Except as otherwise expressly provided in this chapter, every cable operator; and every operator of an open video system must:
(1) Pay an application fee for the consideration of an application for issuance, transfer or modification of a franchise or license in the amount of $10,000, which fee shall be submitted along with the application. Unused portions of the application fee shall be returned to an applicant;
(2) Establish a fund to cover costs of issuing permits and conducting inspections related to the permits and compliance with conditions on right-of-way use, as provided in division (D); and
(3) Pay a fee for the use of the public rights of way to conduct business, which fee is referred to below as a “license” fee or “franchise” fee. Subject to the exception in division (C) below, the amount paid shall be the applicable amount specified in § 100.38.
(C) Exceptions. The amounts required under § 100.38 need not be paid if state law or the city code of ordinances requires otherwise; or during any transition period for a current franchise or license holder. This exception shall be read narrowly; an operator that is engaged in one line of business that is subject to this exception, shall not be excused from paying the fee for its other lines of business. In cases subject to this exception, the highest permissible fee shall be paid.
(D) Billable work order. Each communications facility operator shall file an annual billable work order with the CAO to cover the city’s actual costs of administration and inspection of the operator’s physical facilities and activities in the public rights-of-way. On January 31 of each year, every communications facility operator shall deposit with the city’s Finance Director an amount calculated by the CAO to cover the cost of work likely to be performed by the city under that billable work order during the succeeding July 1 through June 30. The city may draw upon that deposit to cover its costs. The CAO at any time may require a communications facility operator to replenish the amount deposited on January 31, if it appears that the initial deposit will be exhausted during the course of the year. No permit issued shall be valid or of any force or effect if an operator fails to make the required deposits. The amount paid and used for the work orders may be credited against taxes owed to the city, to the extent required by state law.
(E) Application to persons that provide different types of services. The fact that a fee is paid on one type of service provided over a communications facility, does not excuse an operator from its duty to pay fees on other types of services that it may be authorized to provide over that facility. As an example, and not as a limitation of the foregoing, a cable operator that pays a franchise fee on revenues derived from the provision of cable services must also pay any fees that may be established by the city from time to time on use of the rights-of-way by persons providing telecommunications services, to the extent the cable system is used for such purposes.
(F) General rules for payment of fees.
(1) Unless otherwise specified in a franchise or a license, franchise and license fees shall be paid to the city quarterly, and not later than 30 days after the end of each calendar quarter.
(2) Unless a franchise or license provides otherwise, each franchise or license fee payment shall be accompanied by a statement showing the manner in which the fee was calculated.
(3) No acceptance by the city of any franchise or license fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall the acceptance of the franchise or license fee payment be construed as a release of any claim the city may have for additional sums payable.
(4) The franchise or license fee payment is not a payment in lieu of any tax, fee or other assessment except as specifically provided in this chapter, or as required by applicable law. By way of example, and not limitation, permit fees and business license taxes are not waived and remain applicable.
(5) Within 90 days following the end of the calendar year, each person which paid a franchise fee shall submit a statement, certified as true by an independent auditor or the chief financial officer of the person, setting forth gross revenues of the communications facility, by category, and describing what revenues were included and excluded in the fee calculation, and any adjustments made to gross revenues. If payments are late, in addition to paying any applicable penalties or damages, the person that owes the fee shall pay interest on the amount owed at the statutory interest rates applicable to judgments. Any person holding a license shall submit a statement showing how it calculated the license fee owed.
(6) The city may, from time to time, and upon reasonable advance written notice, inspect and audit any and all books and records reasonably necessary to the determination of whether fees have been accurately computed and paid.
(7) Notwithstanding the foregoing, in the event that a person that is obligated to pay a fee ceases to provide service for any reason (including as a result of a transfer), such person shall make a final payment of any amounts owed to the city within 90 calendar days of the date its operations in the city cease, and shall provide a statement of gross revenues for the calendar year through the dates operations ceased which statement shall contain the information and certification required by division (F)(5) above.
(Ord. 26-97, passed 9-23-1997)