(A) City Administrative Officer responsible for administration. The City Administrative Officer or his or her designee is responsible for enforcing and administering this chapter, and the City Administrative Officer or his or her designee is authorized to give any notice required by law or under any franchise or license, including by way of example and not limitation, a notice required under 47 U.S.C. § 546. The City Administrative Officer is also authorized to seek information from any communications facility operator, to establish forms for submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this chapter. Franchises may only be issued or revoked by action of the City Council.
(B) Applications for franchises and licenses.
(1) An application must be filed for an initial franchise or license, for a transfer or for renewal of a franchise or license. Each entity that is required to hold a franchise or license must submit an application therefor to the CAO in accordance with the requirements of this chapter; a request for a cable franchise renewal properly submitted pursuant to 47 U.S.C. § 546(a) will be reviewed in accordance with § 100.33(E). To be accepted for filing, an original and six copies of a complete application for a franchise, and an original and three copies of a complete application for a license, showing the routes the applicant proposes to use, must be submitted to the CAO. All applications shall be available for public inspection. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(2) An application may be filed by any person on that person’s own initiative or in response to a request for proposals. The CAO is authorized to issue requests for proposals from time to time.
(3) An applicant that is awarded a franchise or license, shall, in addition to making all the other payments required herein, pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise or license pursuant to the provisions of this chapter. The payment shall be made within 30 days after the city furnishes the franchisee or licensee with a written statement of such expenses by delivery of payment to the Director of Finance.
(4) No franchise or license shall become effective until all required fees and costs are paid.
(5) Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a franchised or licensed communications facility to secure the construction, operation, or repair of the system may be made without application and without the city’s prior consent; except that no such arrangement may be made if it would in any respect or under any condition prevent the communications facility operator or any successor from complying with the franchise or license and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the operator, or to own or control the communications facility, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise or license, this chapter or other applicable law.
(C) Minimum contents of every franchise or license. In addition to satisfying the other applicable requirements of this section, every franchise or license for a communications facility shall contain the following provisions.
(1) The franchise or license shall provide that neither the granting of any franchise or license, nor any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the franchise or license is issued or may thereafter be obtained.
(2) The franchise or license shall only authorize occupancy of the public rights-of-way to provide the services and for the purposes described in the franchise or license.
(3) A franchise or license shall be a privilege that is held in the public trust and is personal to the original franchisee or licensee. The franchise or license shall ensure that no transfer of the franchise or license may occur, directly or indirectly, without the prior consent of the city; except as contemplated by § 100.39 or as otherwise expressly provided in this chapter.
(4) The franchise or license shall ensure that any person placing communications facilities in the public rights-of-way will not discriminate in hiring, in contracting, or in the provision of services.
(5) The franchise or license shall contain appropriate provisions for enforcement, compensation, and protection of the public which are consistent with the other provisions of this chapter.
(6) The franchise or license shall be for a specified term, set forth in the franchise or license. No franchise issued under this chapter shall be for a term of longer than ten years; no license issued under this chapter shall be for a term of longer than five years.
(7) Such other terms as are required by the city code of ordinances.
(D) Revocation, reduction of term or forfeiture of franchise or license.
(1) Licenses shall be revocable at will.
(2) Where, after notice and providing the franchisee an opportunity to be heard (if the opportunity is timely requested by a franchisee), the city finds that the facility is being maintained or operated in violation of this chapter or in substantial violation of the terms of the franchise, the city may make an appropriate reduction in the remaining term of the franchise or revoke the franchise. The City Administrative Officer or his or her designee is authorized to establish and conduct a proceeding that comports with the requirements of this division, and to issue a recommended decision, but any such decision may be appealed to the City Council. Any appeal must be filed within 30 days of the decision of the City Administrative Officer or it shall be deemed waived. Notwithstanding the foregoing, the franchise may not be revoked unless the franchisee:
(a) Was given notice of the default;
(b) Thirty days to cure the default;
(c) The franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in 30 days. The required notice may be given before the city conducts the proceeding required by this division; and
(d) No opportunity to cure is required for repeated violations, and fraud shall be deemed incurable.
(3) Notwithstanding the foregoing, the city may declare a franchise forfeited where the franchisee:
(a) Fails to begin to exercise its rights under the franchise within a period specified in the franchise;
(b) Stops providing service it is required to provide in the franchise;
(c) Without the prior consent of the city, transfers the franchise;
(d) Fails to pay the fees owed hereunder; or
(e) Defrauds or attempts to defraud the city or the operator’s customers.
(4) The city shall give a franchisee 30-days’ notice of an intent to declare a franchise forfeited, and shall provide the franchisee an opportunity to show cause why the franchise should not be forfeited.
(5) Notwithstanding the foregoing, any franchise or license shall be deemed revoked 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee or licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. Provided, however, the franchise or license may be reinstated if, within that 120-day period:
(a) The assignment, receivership or trusteeship has been vacated;
(b) The assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise or license, and has executed an agreement, approved by a court having jurisdiction, under which it assumes and agrees to be bound by the terms and conditions of this chapter and the franchise or license; and
(c) Notwithstanding the foregoing, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee or licensee, the city may revoke the franchise or license, following a public hearing before the City Council, by serving notice upon the franchisee or licensee and the successful bidder at the sale, in which event the franchise or license and all rights and privileges of the franchise or license will be revoked and will terminate 30 calendar days after serving the notice, unless:
1. The city has approved the transfer of the franchise or license to the successful bidder; and
2. The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise or license and this chapter.
(E) Effect of termination or forfeiture. Upon termination or forfeiture of a franchise, or termination or forfeiture of a license, whether by action of the city as provided above, or by passage of time, the franchisee or licensee shall be obligated to cease using the communications facilities for the purposes authorized by the franchise or license. The city may require the licensee or franchisee or its bonding company to remove some or all of the licensee’s or franchisee’s facilities from the public rights-of-way and to restore the public rights-of-way to their proper condition. Should the franchisee or licensee neglect, refuse, or fail to remove the facility, the city may remove the facility at the expense of the franchisee or licensee. The obligation of the licensee or franchisee to remove shall survive the termination of the franchise or license for a period of two years. Provided that, this provision does not permit the city to take possession of, or require the franchisee or licensee to remove, any facilities that are used to provide another service for which the franchisee or licensee holds a valid franchise or license issued by the city. Provided further, nothing in this section shall affect the city’s right to take possession of abandoned facilities.
(F) Remedies cumulative. All remedies under this chapter and any franchise or license are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose the use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a communications facility operator of its obligations to comply with its franchise or license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a communications facility operator’s duty to indemnify the city in any way; nor shall such recovery relieve a communications facility operator of its obligations under a franchise or license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double-recovery of damages.
(G) Access to books and records.
(1) Each communications facility operator shall provide the city with access to all books and records related to the construction, operation or repair of the communications facility so that the city may inspect and copy these books and records. The operator’s obligation includes the obligation to produce all books and records related to revenues derived from the operation of the communications facility. An operator is responsible for obtaining or maintaining the necessary possession or control of all books and records related to the construction, operation or repair of the communications facility, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that:
(a) Any record that is a public record must be maintained for the period required by state law; and
(b) A franchise or license may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials.
(2) For purposes of this chapter, the terms “books and records” shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at the CAO’s office, unless the city directs otherwise, or by agreement or pursuant to division (G)(3) below.
(3) If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a communications facility operator may request that the inspection take place at some other location mutually agreed to by the city and the operator; provided that:
(a) The operator must make necessary arrangements for copying documents selected by the city after its review; and
(b) The operator must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.
(4) Without limiting the foregoing, the operator of a communications facility shall provide the city with the following within ten days of their receipt or (in the case of documents created by the operator or its affiliate) filing:
(a) Notices of deficiency or forfeiture related to the operation of the communications facility; and
(b) Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or licensee, or by any partnership or corporation that owns or controls the franchisee or licensee directly or indirectly.
(H) Retention of records; relation to privacy rights. Each communications facility operator shall take all reasonable steps required, if any, to ensure that it is able to provide the city with all information which must be provided or may be requested under this chapter, a franchise, a license or applicable law, including by providing appropriate subscriber privacy notices. Each operator shall be responsible for redacting any data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require an operator to violate state or federal law protecting subscriber privacy.
(I) Reports. The city may require operators of communications facilities to maintain records and to prepare reports relevant to determining the compliance of the communications facility operator with the terms and conditions of this chapter and a franchise or license.
(J) Maps. Each communications facility operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. The operator of each communications facility shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the City Administrative Officer. New maps shall be promptly submitted to the city when the facility expands or is relocated. Copies of maps shall be provided on disk, in a format specified by the City Administrative Officer.
(K) Compliance with laws. Each franchisee or licensee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its franchise or license.
(L) Reservation of authority. The city may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter.
(M) No waiver. The failure of the city to insist on timely performance or compliance by any person holding a license or franchise shall not constitute a waiver of the city’s right to later insist on timely performance or compliance by that person or any other person holding such a license or franchise.
(N) Chapter not a contract. The city expressly reserves the right to amend this chapter from time-to-time in the exercise of its lawful powers. This chapter shall not be construed to be a contract.
(Ord. 26-97, passed 9-23-1997; Ord. 35-2005, passed 12-20-2005)