(A) Contents of application for initial or renewal franchise. In order to obtain an initial or renewal franchise, an operator of an open video system must apply for a franchise. The application must contain the following information and such additional information as the city may from time to time require.
(1) Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent;
(2) A proposal for construction of the open video system that includes at least the following:
(a) A description of the services that are to be provided over the facility;
(b) The identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area’s boundaries;
(c) The location of the proposed facility and facility design, including a description of the miles of plant to be installed; a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route; a description of the power sources that will be used; and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same; and
(d) A map of the route the facility will follow; a designation of the portions of the system that will be placed above-ground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system above-ground and under-ground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, and when it will be completed; and the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities. To the extent plans for the facility required under this division have not been completed, an applicant may so state, but:
1. The best available equivalent must be provided;
2. No construction may begin, even if a franchise issues, until this information has been provided to and approved by the city; and
3. Any such grant will be conditional upon receipt and approval of this information by the city.
(3) A description, where appropriate, of how services will be converted from existing facilities to new facilities and what will be done with existing facilities.
(4) Proof, attested to by a certified public accountant, that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the franchise term. It is not the intent of the city to require an applicant to prove that the services it proposes to offer will succeed in the marketplace.
(5) Proof that an applicant is technically qualified to construct, operate and repair the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately and can respond to emergencies during and after construction is complete.
(6) Proof that the applicant is legally qualified, which proof must include a demonstration that the applicant:
(a) Has received, or is in a position to receive, necessary authorizations from state and federal authorities;
(b) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws or similar laws) that allows the city to conclude the applicant cannot be relied upon to comply with the requirements of a franchise or the provisions of this chapter;
(c) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so.
(7) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
(8) An applicant may show that it would be inappropriate to deny it a franchise under division (A)(6)(b), by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant’s principals, or the remoteness of the acts or omissions from the operation of telecommunications facilities.
(B) Contents of application for initial or renewal license. In order to obtain an initial or renewal license, an operator of an open video system must apply for a license. The application must contain the information required by division (A) above and such additional information as the city may from time to time require.
(C) Additional information regarding affiliates; presumptions. To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the financial proofs required by divisions (A) and (B) should be provided for that person as if it were the applicant. An applicant will be presumed to have the requisite financial, technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if an applicant is a holder of a franchise or license in the city for a cable system or open video system. An applicant may initially demonstrate its financial, technical and legal qualifications by showing that it is entitled to such a presumption. However, nothing herein prevents the city from conducting an independent review of qualifications.
(D) Applications for transfer. An application for a transfer of a franchise or license must contain the same information required by divisions (A) or (B), except that, if the transferor submitted an application under divisions (A) or (B), to the extent information provided by the transferor under divisions (A) or (B) remains accurate, the transferee may simply cross-reference the earlier application.
(E) City review. The city may request such additional information as it finds necessary, and require such modifications to the application as may be necessary in the exercise of the city’s authority over open video systems. Once the information required by the city has been provided, the application shall be promptly reviewed and any approval will also be subject to a city determination that:
(1) The applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law;
(2) The applicant will accept the modifications required by the city to its proposed system. This section shall not be read to authorize the city to exercise authority it does not otherwise have under applicable law;
(3) The applicant will enter into a franchise or license and will comply with any conditions precedent to its effectiveness;
(4) In the case of a transfer, the city must also determine that:
(a) There will be no adverse effect on the public interest, or the city’s interest in the franchise or license;
(b) The transferee will agree to be bound by all the conditions of the franchise or license and to assume all the obligations of its predecessor; and
(c) Any outstanding compliance and compensation issues have been resolved or preserved to the satisfaction of the city.
(5) An applicant shall not be issued a franchise or license if it files or in the previous three years filed materially inaccurate or misleading information in a franchise or license application or intentionally withheld information that the applicant lawfully is required to provide.
(6) Notwithstanding the foregoing, the city may reject an application for a license if it deems it in the public interest to do so.
(1) Every operator of a franchised open video system shall pay to the city a percentage of gross revenues derived from the operation of the open video system in the city each quarter equal to the gross revenue percentage paid by any cable operator, or, if there is no cable operator, the highest amount that could be charged consistent with federal and state law. In addition, unless a franchise provides otherwise, an open video system operator:
(a) Shall pay to the city, at a time directed by the city, an amount equal to the highest amount contributed by any cable operator under its franchise for and in support of public, educational and government use (including institutional network use) of its cable system; and
(b) To the extent that a cable operator is providing other support for public, educational or governmental use, the operator must duplicate that support within a time and in a manner directed by the city, or provide a cash equivalent acceptable to the city. If there is no cable operator, the city may require the operator to pay the highest amount that may be charged consistent with federal and state law. In applying this section, the city may take such steps as it deems appropriate to ensure that the obligations borne by the open video system operator are no greater or lesser than the obligation imposed upon the cable operator providing the greatest benefits to the community. Further, the city reserves the right, and every franchise shall be interpreted to incorporate the right, to require the operator to pay additional compensation if the provisions of federal law specifying the compensation to be paid by operators changes or is declared invalid, or to ensure that the operator of an open video system pays no less than the amount paid by any cable operator.
(2) Every operator of a licensed open video system shall pay to the city a fee that recovers an amount equivalent to the fair market value of the property used in the city. No license may be issued without an enforceable fee.
(Ord. 26-97, passed 9-23-1997)